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[2024] ZAFSHC 20
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Madikoe v Road Accident Fund (3368/2018) [2024] ZAFSHC 20 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case no: 3368/2018
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NTHABISENG
MADIKOE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Link
No: 4330584
CORAM:
VAN ZYL, J
HEARD
ON:
10 & 12
MAY 2023; 14 JUNE 2023
DELIVERED
ON:
30 JANUARY 2024
[1]
The plaintiff issued summons against the defendant for payment of
damages which she
suffered as a result of a motor vehicle accident
which occurred in the district of Bloemfontein on 5 October 2017 at
Maitland Street,
Bloemfontein, between a motor vehicle – with
registration letters and –number F[…](“the insured
vehicle”),
at the time driven by Mr B Masilela (“the
insured driver”), and the plaintiff, who was a pedestrian at
the time.
[2]
The trial was on the roll for trial on 9, 10 and 12 May 2023 for the
determination
of both the merits and the
quantum.
[3]
The trial was initially allocated to my brother, Mhlambi, J. However,
he became seized
with another matter and this matter was re-allocated
to me. On 9 May 2023, Ms Bornman, who appeared on behalf of the
defendant,
requested that the trial stands down to 10 May 2023, for a
possible settlement, the wasted costs of 9 May 2023 to be costs in
the
cause. Mr Marx, who appeared on behalf of the defendant, did not
have an objection to the said request.
AD
MERITS:
[4]
At the commencement of the trial on the morning of 10 May 2023, I was
informed by
the parties that they have reached a settlement in
respect of the merits on the basis of 90/10 percent apportionment in
favour
of the plaintiff.
AD
QUANTUM:
Particulars
of claim:
[5]
In the particulars of claim the plaintiff claimed damages in respect
of the following:
“
6.1
Pain and discomfort.
6.2
Loss
of amenities of life.
6.3
Had to
undergo medical treatment.
6.4
May have
a loss of earnings/earning capacity in future.”
[6]
On 10 May 2023, the plaintiff filed the amended pages to the
plaintiff`s particulars
of claim with regard to the total sum of the
damages claimed to be R6 735 454.00. In terms of the amended
particulars of claim
this amount is calculated as follows:
“
7.1
Past medical and hospital
expenses
R5,000.00
7.2
Estimated future
medical treatment
R250,000.00
7.3
Past loss of income
R764,412.00
7.4
Estimated future
loss of income
R4,716,042.00
7.5
General damages
R600,000.00”
[7]
At the commencement of the trial on 10 May 2023, I was advised by the
parties that
the defendant tendered a certificate in terms of
section
17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, in respect of
compensation for the plaintiff’s future medical expenses,
limited to 90% thereof, which tender has been accepted
by the
plaintiff.
[8]
The plaintiff did not present any evidence in respect of her past
medical and hospital
expenses, probably because she was treated at
provincial facilities, with no consequential damages in respect of
past medical and
hospital expenses.
[9]
The issues which consequently remain in dispute between the parties
regarding the quantum of the
plaintiff’s claim which I have to
adjudicate, are the plaintiff`s past and future loss of income and
the amount of general
damages to be awarded to the plaintiff.
[10]
At the end of the trial on 12 May 2023, it was agreed that the
parties will file their respective heads of
argument on 19 May 2023
and 26 May 2023, with replying heads of argument on 31 May 2023. The
matter was postponed to 14 June 2023
for the hearing of oral
arguments.
The
Plaintiff’s witnesses in respect of quantum:
[12]
Dr M B Deacon,
an
orthopaedic surgeon
presented oral
evidence and his report was handed as in exhibit “B”. He
examined the plaintiff on 13 August 2019.
[13]
Dr Deacon testified that for purposes of the present matter the
plaintiff can be considered to have been
a healthy individual prior
to the accident, with no existing injuries.
A: Initial treatment
[14]
After the accident the plaintiff was transported to Pelonomi State
Hospital, Bloemfontein, where she was
fully conscious on arrival at
the hospital. On examination the following was noted:
1.
The right lower limb was significantly swollen and bruised
over the foot and ankle.
2.
The limb was warm to touch and extremely tender.
3.
The patient was unable to actively move the limb and
passive movement actively
elicited pain.
[15]
X-rays of the right lower leg, ankle and foot were conducted, which
revealed a right medial malleolus fracture.
The plaintiff was
admitted to the ward and provided with analgesics. A back-slab
was applied to the right lower leg.
[16]
The plaintiff was discharged the following day, 6 October 2017, with
a prescription for analgesics and elbow
crutches to aid immobility.
A follow-up appointment was scheduled for 26 October 2017.
[17]
On 26 October 2017 x-rays of the right lower leg were taken.
The x-rays confirmed the right medial
malleolus fracture and also
noted the presence of talar shift at the ankle joint. The
plaintiff was informed of the need
to perform an open reduction and
internal fixation of the right ankle. According to the hospital
records, the plaintiff signed
a Refusal of Hospital Treatment (RHT)
form and did not receive the recommended surgery. Dr Deacon
explained that the word
“refusal” is actually too strong
a word and it should be understood to mean that she declined
operative management
and preferred conservative treatment. He
further explained that nothing actually turns on this choice as
surgery would not
have had a different outcome. The back-slab
was re-applied to the right lower leg for a further two weeks.
The plaintiff
was discharged with no follow-up appointments.
B: Acute pain and
suffering
[18]
With regard to acute pain and suffering, the plaintiff stated to Dr
Deacon that she experienced acute pain
in her right ankle immediately
after the accident. The pain remained acute for two weeks.
Thereafter she experienced moderate
pain for a further month. The
medication administered only provided limited pain relief.
C:
Chronic pain and suffering
[19]
In respect of chronic pain and suffering, the plaintiff stated to Dr
Deacon that she continued to experience
pain in her right ankle.
According to her the pain gradually increased over time.
Weight-bearing aggravated the pain
in her right leg. Standing
and walking for long periods of time was difficult to endure.
D: Interim symptoms
[20]
With regard to interim symptoms of the right ankle injury, the
plaintiff stated to Dr Deacon that she wore
a Plaster of Paris (POP)
cast for approximately six weeks. She mobilized with a pair of
crutches for approximately two months after
the accident. She then
began to mobilize independently. According to what the plaintiff told
Dr Deacon, the following symptoms
persisted after she started
weight-bearing and mobilizing independently.
1.
Pain in her ankle when walking or standing for prolonged periods.
2.
Limping.
3.
Inability to squat due to pain and weakness.
4.
Increased pain in her ankle during inclement weather.
5.
Stiffness of her ankle.
6.
Weakness of her ankle.
7.
Frequent swelling of the ankle.
8.
Pain and weakness when lifting heavy objects.
The aforesaid symptoms
continued to persist.
E: Current symptoms
[21]
During his consultation with the plaintiff, the plaintiff explained
her current symptoms to be the following:
She was still experiencing
pain in her ankle. She stated that the movement of her ankle is
limited, weak and painful. The pain
is even more aggravated by
physical activity. Physical activities such as walking/standing for
long periods of time and lifting
heavy objects are difficult and
painful to endure. She also continues to experience stiffness and
swelling in her ankle. Cold weather
also aggravates the pain.
F:
Physical examination
[22]
During the physical examination Dr Deacon noted significant swelling
of the ankle. The plaintiff showed pain
on palpation over the medial
and lateral aspects of the ankle. It was also painful over the
subtalar joint. There was also
restricted range of movement of
the ankle.
G:
Radiological examination
[23]
Dr Deacon also had x-rays taken on the date of his physical
examination. He perused the radiological
report and noted the
following;
1.
There is a subtle talar tilting identified with some widening of the
lateral ankle mortise
and concomitant narrowing of the supra medial
mortise.
2.
On lateral assessment, also slightly wider at tibia talar joint space
posteriorly than anteriorly.
3.
Prominent soft tissue prominence noted medially as well as
laterally.
4.
Impression of previous undisplaced yield injury at the base of the
medial malleolus.
5.
Early narrowing of the medial ankle mortise may reflect some early
degeneration at this level.
Dr Deacon explained that with this
type of injury a patient normally develops early post-traumatic
arthritis.
6.
Subtalar joint slightly sclerotic but no cysts, spurs or other signs
of significant degeneration.
H: Diagnosis
[24]
Dr Deacon made the following diagnosis:
1.
Medial malleolus fracture and talar shift/tilt of the ankle joint
with:
1.1
residual pain and swelling;
1.2
restricted range of movement of the ankle;
1.3
post-traumatic osteoarthritis of the ankle-joint.
I:
Recommended treatment
[25]
Dr Deacon recommends conservative treatment with non-steroidal
anti-inflammatory drugs (NSAIDS) and analgesics,
physiotherapy and an
ankle brace.
[26]
Should the aforesaid treatment fail or not offer effective relief,
the plaintiff will require local steroid
injections in theatre.
[27]
Dr Deacon testified that the plaintiff has a probability of greater
than 75% for the degeneration in her
ankle to progress to end-stage
osteoarthritis. That will necessitate arthrodesis of the ankle
joint. This means fusing
of the ankle joint to prevent it from
moving, which results in a stiff ankle joint.
[28]
After surgery, the plaintiff will require physiotherapy and long-term
rehabilitation across the plaintiff’s
total lifespan.
[29]
Dr Deacon also stated that due to the fact that the plaintiff would
need to take the analgesics and anti-inflammatories
on a regular
basis, she may experience serious side effects, for which she will
also have to receive treatment.
J: Productivity
[30]
With regard to productivity, Dr Deacon stated the following:
1.
According to him the injuries sustained had a
profound
impact
on the plaintiff’s productivity, working ability and amenities
of life and will continue to do so in the future.
2.
The plaintiff was at the time of the examination, a 25-year-old
single mother of 1 child.
She was being employed as a Coffee Shop
Assistant. The plaintiff stated to Dr Deacon that she struggles with
many of her duties
at work due to the pain and symptoms associated
with the injury she sustained. She is unable to stand and walk
for long periods
of time as these aggravate the pain in her right
ankle. Lifting heavy objects is difficult due to pain and weakness in
the plaintiff’s
right ankle. The plaintiff explained that she
was struggling to perform daily activities and household chores due
to the pain and
limitations acquired after sustaining the injury.
3.
With successful treatment, the plaintiff’s productivity will
improve. However,
according to Dr Deacon, as the degeneration
in her right ankle progresses, her productivity will decrease again.
[31]
Dr Deacon opined that the plaintiff must be
accommodated in a
permanent light duty/sedentary working environment
, as determined
by an Occupational Therapist. Dr Deacon noted that the
plaintiff is going to be absent from work on a regular
basis for
conservative and/or surgical intervention.
K:
Retirement
[32]
In respect of retirement, Dr Deacon noted that the plaintiff stated
that she would have been able to work
to the retirement age of 65
years old if not for the accident and injury sustained.
[33]
According to Dr Deacon the plaintiff must not do physical labour
anymore due to the injuries sustained and
resultant degeneration.
[34]
Even if accommodated in a
permanent light duty and sedentary
position
, Dr Deacon opined that provision must be made for 5
(five) years earlier retirement.
[35]
Dr Deacon stated his reasons for the suggested earlier retirement of
the plaintiff to be the following:
Disease and pain:
1.
Progression of the degeneration in her right ankle.
2.
Progression of pain.
3.
Progression of disability
4.
Psychological and physical effects of
chronic pain.
Future
treatment/potential complications:
1.
Regular conservative and/or surgical treatment.
2.
Major surgery foreseen.
3.
The potential for developing complications due to future major
surgery.
Work
capacity/employer expectations:
1.
Inability to maintain responsibilities.
2.
Loss of workdays due to pain and treatment.
3.
Psychological strain due to working expectations and progressive
disease.
4.
The inability of the employer to adopt to the reduced working
capacity.
L: Longevity
[36]
According to
Dr Deacon, the injury will not have a
detrimental effect on the
plaintiff`s life expectancy.
M: Miscellaneous and
cross-examination
[37]
Dr Deacon opined that the plaintiff’s current occupation is not
permanent light duty and is not sedentary,
which would lead to even
more damage and deterioration of the ankle joint. The plaintiff
will not be able to continue with
her current employment.
According to Dr Deacon he agrees with the opinion of the occupational
therapist that the plaintiff
will only be able to do sedentary work
with minimal light duty. Even if she is to obtain a purely sedentary
occupation, it would
still cause her ankle and leg to swell, which
could lead to further complications.
[38]
During cross-examination Dr Deacon testified that the weight increase
the plaintiff has suffered, is directly
connected to the injuries she
sustained. Where she used to do different forms of exercise
prior to the injury, she does not
do exercise anymore, because after
a day’s work her ankle is already painful to the extent that
she does not find it possible
to put even more pressure on her
ankle. Exercise, will in any event, aggregate the injury.
[39]
Dr Deacon conceded during cross-examination that physiotherapy and
other treatment will slow down the arthritis
process. However,
it will not turn the degeneration process around, since cartilage
does not heal.
[40]
Mr Marx applied that the evidence of the
Occupational Therapist
,
Ms Luna Greyling
, be presented via virtual hearing. The
defendant consented to the granting of the application and I
consequently granted the application.
She presented oral evidence and
her report was accepted as exhibit “A”.
[41]
Ms Greyling assessed the plaintiff on 5 August 2019. At that
stage she was, but for the ankle injury,
a healthy individual.
[42]
Ms Greyling referred to the injuries which the plaintiff sustained as
also testified to by Dr Deacon and
the treatment she received.
A: Complaints on date
of the assessment
[43]
The plaintiff reported the following complaints on the day of the
evaluation:
1.
Standing for more than ten minutes causes a moderate burning pain
from her knee down to her
right foot.
2.
Walking more than fifteen minutes causes a moderate burning pain over
her right ankle and
her right ankle gets weak.
3.
The right ankle gets swollen when she is standing or walking for a
long time.
4.
Running is limited to short distances.
5.
Difficulty walking up a steep incline.
6.
Avoid walking over uneven terrain, as it causes right ankle pain and
weakness.
B: Employment at the
time of the assessment
[44]
Ms Greyling dealt with the history of the plaintiff’s
employment, which, at the time of the assessment,
was when the
plaintiff worked on an
ad hoc
basis as a beverage mixer/maker
at Torado Coffee Shop for four days a month. Based on the
description provided by the plaintiff
her work could be categorized
as
light physical work
. The plaintiff described her
physical difficulties which she experienced at work as the following;
1.
Her right lower limb is swollen at the end of the working day.
2.
Moderate pain experienced in her right ankle causing great discomfort
after work and the
following day.
3.
Right lower limb fatigue after work when walking to the taxi stop.
The plaintiff voiced
that she has to assist her leg using her hands
to climb into the taxi.
C:
Lifting strength
[45]
In respect of lifting strength, Ms Greyling testified that the
plaintiff did not manage to reach her maximum
capacity during task
performance as noticeable by physiological and biomechanical
indicators. Protective behaviour, i.e.
decreased right lower
limb weight bearing when lifting and carrying weights resulting in an
asymmetrical posture. The plaintiff
reported right lower limb
fatigue and weakness when handling weights within her heavy to
maximum weight handling capacity.
The plaintiff displayed the
ability to handle loads falling within the light physical demand
category. Frequent load handling
is however not advised due to
restrictions in postural and mobility abilities.
D: Psychosocial
functioning
[46]
With regard to the plaintiff’s psychosocial functioning, Ms
Greyling noted the following concerns:
1.
Remaining travel anxiety.
2.
Reported to be socially withdrawn and having
a low self-esteem.
3.
Voiced experiencing aggression and reduced
frustration tolerance.
4.
Noted experiencing symptoms of extremely severe
anxiety and
depression and severe stress.
Ms Greyling advised that
a clinical psychologist should do further investigation and comment
regarding the plaintiff’s psychosocial
functioning.
E: Cognitive abilities
[47]
During the evaluation the plaintiff was able to follow a conversation
without difficulty, recalling relevant
information and answering
questions posed.
[48]
Concerning the plaintiff’s cognitive abilities, the plaintiff`s
reported psychosocial distress, could
have a deleterious effect on
her attention and concentration span, influencing her ability to
attend, retain and recall information.
Ms Greyling again
suggested that the plaintiff should consult a clinical psychologist
for further investigation.
F:
Domestic activities
[49]
Prior to the accident the plaintiff reported no difficulty attending
to domestic tasks (medium work).
She said that she was
responsible for the laundry tasks, washing the dishes and
occasionally assisting her mother with meal preparation.
Her mother
has always been responsible for all the cleaning and shopping tasks.
[50]
Following the accident, the plaintiff said that she has been unable
to do the laundry. She said that
standing for prolonged periods
to hand wash the laundry and fetching the water from the yard tap
causes right lower limb discomfort
and therefore her mother has been
doing the laundry as well.
[51]
The plaintiff presented with some limitations in standing and walking
and her load handling ability is limited
to handling light loads
(maximum of 9kg) on an occasional basis. Therefore, her
reported difficulties are justified.
[52]
The plaintiff’s mother is unemployed and has taken over the
more strenuous domestic tasks. Therefore,
no domestic
assistance is currently foreseen.
[53]
Should the plaintiff become solely responsible for all the domestic
tasks including heavy cleaning tasks,
Ms Greyling would then
recommend domestic assistance once per week/eight hours per week to
assist the plaintiff with the more strenuous
domestic tasks (medium
work).
G:
Transport
[54]
The plaintiff does not have a driver’s licence and is reliant
on public transport. Ms Greyling
repeated the fact that the
plaintiff reported travel anxiety and hypervigilance when traveling
or walking on public roads.
[55]
Should the plaintiff obtain a driver’s licence in the future
and her right lower limb continues to
be symptomatic, the plaintiff
could experience right lower limb discomfort during driving. She may
require regular rest periods,
should she drive for long periods to
manage her right lower limb oedema and discomfort.
[56]
Should the plaintiff undergo future surgery to her right ankle as
recommended by Dr Deacon, her right lower
limb could be immobilized
and she may rely on mobility aids. Should the plaintiff still
be reliant on public transport, she
may have difficulties accessing
and using public transport as she has to walk for distances far to
the taxi stop and she may need
to stand in a queue for a taxi.
If the plaintiff obtained a driver’s licence by then, she will
be unable to drive as
her right lower limb could be immobilized.
Private transport should thus be foreseen and remunerated during the
recovery
period of approximately six weeks.
H:
Loss of amenities
[57]
According to Ms Greyling the plaintiff stated that she does not have
difficulty attending to her personal
care prior and following the
accident in question.
[58]
In respect of leisure (sport and recreation), Ms Greyling stated that
prior to the accident the plaintiff
enjoyed going to the gym five
days per week and playing in the community netball team twice per
week. Her ability to participate
in these activities have been
affected as a result of the symptoms in her right lower limb.
As a result of the accident she
is no longer engaging in any physical
exercises.
[59]
The plaintiff displayed musculoskeletal impairments in her right
ankle which is restricting her postural abilities
and mobility. She
also walks with a slight antalgic gait with decreased weight bearing
onto her right lower limb. Physical agility
is required to play
netball, thus the plaintiff’s report of no longer playing
netball is justified.
[60]
The aforesaid loss of amenities is in addition to the psychosocial
issues which have already been dealt with
above.
[61]
Ms Greyling consequently concluded that the injuries sustained during
the accident in question had a negative
influence pertaining to
transport, household activities, recreational activities and
psycho-social aspects of the plaintiff`s life.
She has
therefore suffered loss of enjoyment as a result of the accident in
question.
I:
Earning capacity
Previous
employment:
[62]
The plaintiff was at the time of the assessment a 25-years old. Her
highest level of education is Grade 12,
obtained in 2013. The
plaintiff has no other tertiary education or informal skills
training.
[63]
The plaintiff was unemployed until 2015, when she managed to secure
permanent employment at a biltong shop,
World of Meat, Woodlands,
Bloemfontein.
[64]
Prior to the accident the plaintiff worked as a cashier and shop
assistant in the said Biltong shop and earned
approximately R4 000.00
per month. Their salaries were always paid in cash. She
described her job task and functions
as a cashier and shop assistant
as follows:
1.
Operates cash register to itemize and total customers’
purchases.
2.
Reviews price sheets to note price changes and sale items.
3.
Collects cash, cheque or change payments from customers and gives
change for cash transactions.
4.
Unload biltong deliveries (weight between 8 to 10 kg), stocks shelves
and marks prices on
items.
5.
Counts money in cash drawer at beginning and end of work shift.
6.
Record daily transaction amounts from cash register to balance cash
drawer.
7.
Weigh and cut biltong as per the customers’ requests.
8.
Use electronic scanner to record price.
9.
Cleaning of biltong machines and shop at the end of the shift.
[65]
Based on the description provided by the plaintiff, her pre-accident
work, according to Ms Greyling, can
be categorized as
light work
with the occasional execution of medium work
.
[66]
After the accident the plaintiff was on sick leave for two months
during which she did not receive a monthly
salary and therefore had a
loss of income.
[67]
Following the sick leave, the plaintiff returned to work, working in
a reduced capacity. Her work tasks
were limited to cashier
work. She was also provided with a high chair to sit on during
working hours. The plaintiff
explained to Ms Greyling that she
no longer assisted customers, unload the delivery crates or perform
cleaning tasks. She
said that her monthly salary was reduced to
R3 500-00 as she worked in a reduced capacity.
[68]
When considering her post-accident job description, it is to be
categorized, according to Ms Greyling, as
sedentary work with the
occasional execution of light work
.
[69]
The plaintiff resigned at the end of February 2018, because of the
difficulties she experienced at work.
Her right lower limb got
swollen at the end of a working day. This caused her great discomfort
and limited her mobility. The plaintiff
voiced to Ms Greyling that
she could only walk short distances as her right leg fatigued sooner
compared to her left leg.
She also experienced a burning pain
from her right knee down to her foot.
Employment
at date of the assessment:
[70]
The plaintiff told Ms Greyling that she works as a beverage mixer/
maker at Torado Coffee Shop in her community
on an ad hoc basis. She
works about four days in a month. She has to weigh and measure
ingredients according to a recipe and place
it into a mixer. She then
operates the mixer by putting it on a specific setting. The plaintiff
then hands over the beverage to
the customer. The plaintiff
said that her cleaning tasks are limited to cleaning spills, she does
not have to clean the shop
as such. According to Ms Greyling
the aforesaid job description can be categorized as
light work
.
[71]
The plaintiff reported that she experiences the following
difficulties at work:
1.
Her right lower limb is swollen at the end of her working day.
2.
Moderate pain experienced in her right ankle, causing great
discomfort after work and the
following day.
3.
Right lower limb fatigue after work when walking to the taxi stop.
She again voiced
that she has to assist her leg using her hands to
climb into the taxi.
[72]
Considering the plaintiff’s functional assessment findings, her
reported difficulties were, according
to Ms Greyling, justified.
J:
Residual work capacity
[73]
In respect of the aforesaid, I deem it necessary to quote directly
from the report of Ms Greyling:
“
12.4 RESIDUAL WORK
CAPACITY
12.4.1
Physical limitations: a) mildly restricted active range of motion and
reduced muscle strength in right ankle; b) reduced
muscle strength in
right knee; c) oedema in right lower limb; d)
reduced dynamic standing balance;
e) reduced functional lower limb
strength and endurance, as well as symptoms of moderate aching pain
in her right lower limb, impact
negatively on her functional
performance.
12.4.2
Postural abilities such as standing, walking, forward bend standing,
elevated work, kneeling, crouching and stair climbing
were restricted
to occasional performance (up to 33% of her work day).
12.4.3
The plaintiff displayed the ability to lift and carry loads falling
within the light work category. Frequent load handling
is not advised
due to restrictions in postural abilities and mobility.
12.4.4
When considering the aforementioned, the plaintiff is
currently
restricted to sedentary with the occasional execution of light work
.
Noted that even within the sedentary category she presents with
slight limitations i.e. limited sitting tolerances requiring
intermittent resting periods to alternate between postures to manage
her right lower limb oedema) and she can only lift and carry
loads in
the light work category on an occasional
basis.
12.4.5
The plaintiff's current residual work capacity does not meet her
pre-accident work
working as a cashier and shop assistant,
categorised as
light work with the occasional execution of
medium work
.
12.4.6
Her current residual work capacity meets her post-accident work
demands, working in a reduced capacity as a cashier,
which is
categorised as sedentary work with the occasional execution of light
work. The plaintiff however, did not cope with the
work demands as
she returned to work using two elbow crutches and she was in the
process of recuperating from the injuries she
sustained. Therefore,
the writer would expect that the plaintiff would have had
difficulties to cope with her work demands at that
point in time.
12.4.7
Currently the plaintiff works as a beverage maker on an ad hoc basis
at a coffee shop. Her work is categorised light work.
The plaintiff
reported that she experiences accompanying discomfort whilst working,
after working and the following day. It is
therefore evident that the
plaintiff would not be able to sustainably perform light work over a
five-day work week.
12.4.8
The plaintiff's
current residual work capacity
is thus
restricted to
sedentary work with the occasional execution of
light work
, with load handling limited to handling light loads on
an occasional basis.
12.4.9
She is thus considered not suited for full light, medium, heavy and
very heavy work.
12.4.10
The plaintiff voiced that prior to the accident she was in the
process of applying to get accepted to the National Police
Academy
for training. She said that she passed her theory exam, but following
the accident she terminated the process. She said
that she realised
she does not have the residual physical abilities to pass the fitness
exam.
12.4.11
When considering the physical demands required to become
a field police officer, categorised as medium
work, the plaintiff
currently does not have the residual work capacity to train and
become a field police officer.
12.4.12
The writer opines that it is justified, that the plaintiff had to
forego her future plans applying to the National Police
Academy for
training to become a police officer, considering her current residual
work capacity.”
[74]
Ms Greyling clearly opined, also in court, that currently the
plaintiff’s residual work capacity is
limited to
sedentary
work with the occasional execution of light work
.
[75]
Should the plaintiff’s right ankle becomes more symptomatic as
expected with aging and further joint
degeneration, her residual work
capacity could in the long run be
further restricted to sedentary
work
. She could also acquire occasional rest periods to
alternate between various postures to manage the symptoms in her
right
ankle (pain and oedema) which could in turn have a negative
impact on her productivity.
[76]
Considering the aforementioned, Ms Greyling opined that the plaintiff
is not an equal competitor in the open
labour market, compared to her
uninjured piers.
K:
Cross-examination and miscellaneous
[77]
When Ms Greyling was advised that the plaintiff now works full time
as a beverage maker, five days a week,
she opined that she will not
be able to sustain five days a week for a full work day. She
further opined that it was in any
event not advised, since it can
result in deterioration of the right ankle with consequential
severity in the pain. According to
Ms Greyling, the plaintiff will
therefore not be able to perform her current work on a sustainable
basis.
[78]
When asked to explain certain categories of the work, she referred to
her report and testified that
sedentary work
involves sitting
most of the day, most of the time, but may involve walking or
standing for brief periods of time.
Sedentary work with
light physical work
entails to be seated for five hours a day and
performing light occasional physical work for less than three hours
per day.
[79]
I deem it apposite to first deal with the evidence of
the
plaintiff
before I deal with the expert evidence of Mr Moodie.
[80]
The plaintiff testified that she is currently 29 years old, resident
in Freedom Square, Bloemfontein.
[81]
She confirmed that before the accident she worked at the biltong shop
at Woodlands, as testified by Ms Greyling,
where she earned R3 900-00
per month. She confirmed the correctness of her duties at the
time as explained by Ms Greyling.
[82]
The plaintiff testified that at the time of the accident, she was
looking for better employment, preferably
within the government
environment. She applied at Mangaung Police Station to become a
police officer. After she applied,
she was informed that she
had to write a written test in relation thereto. After she
wrote the written test, she received
a SMS that she passed the test
and that she had to go for a physical training test. In her
evidence she referred to a document
contained in Volume 2 of the
Notices, p. 103, which reflects the results of psychometric tests in
relation to the plaintiff and
which indicated that the tests were
done on 1 June 2017 and the results were uploaded on 28 August 2017.
The said document
indicates that the plaintiff successfully completed
the relevant psychometric tests. This document was
provisionally allowed
in evidence.
[83]
Due to the accident the plaintiff was unable to attend the required
physical testing.
[84]
The plaintiff testified that at the time of the accident she was
healthy, fit and she wore clothing of about
the sizes 34 and 36,
whilst since the accident she has gained weight and now wear clothes
of sizes 42 and 44. She explained
that before the accident she
used to go to the veld where they used to do exercises at the
location after work where she did running,
squats etc. However,
since the accident she has not been able to perform the said
exercises.
[85]
At the time of the accident the plaintiff was also busy preparing
herself to obtain her learners driver’s
licence, but after the
accident she was unable to obtain her licence.
[86]
Since the accident she wanted to apply for other positions within the
government sphere, but she will be
unable to perform same, since she
cannot work for long hours on end. The plaintiff applied at
Woolworths, but somebody whom
she knew who worked at Woolworths, told
her that she will have to be able to stand for long hours, which she
cannot do.
[87]
Presently she is employed as a barista at a coffee shop and she works
7am to 5pm. It is the Vida-e-Café
at Preller Square, Dan
Pienaar, Bloemfontein. When they are not that busy, they have
to take the eats and drinks to the customers,
but during the busy
times, the customers collect the eats and drink themselves from the
counter. The plaintiff explained
that their busy times are
during the mornings between 7h00 and 9h00, later the day during
lunchtime and then again between 15h00
and 17h00. She further
explained that they rotate during rush hours, by either working at
the cash register or by making
coffee.
[88]
The plaintiff is earning a basic salary of R3 900-00 per month
without overtime and Sunday payments.
On average she earns
about R4 500-00 per month.
[89]
The plaintiff explained that when she returned to the biltong shop
after the accident, she could only do
cashier work. Therefore,
where she previously earned R4 200-00 per month, she afterwards
only earned about R3 700-00
or R3 800-00 per month,
depending on whether she worked on Sundays. She explained that
they were paid in cash and therefore
she does not have any proof of
her salary at the time. The biltong shop has since closed down
some time ago already.
[90]
The plaintiff testified that she is the breadwinner in the house and
there is no one else who can provide
if she is to sit at home.
[91]
She has no training to work on a computer or a switchboard.
[92]
The plaintiff has not applied at a supermarket for employment, since
the hours she will have to sit as a
cashier will be too long for her
ankle to endure. In this regard she explained that when she
sits all the time, her ankle
builds up fluid and swells excessively.
Even if she sits for only half an hour, her ankle starts swelling.
[93]
The plaintiff testified that at her present employment, she explained
her situation to the employer and they
are sympathetic towards her.
They accommodate her with regard to sitting and standing in-between
her work. According
to her if she was to lose her present job,
she does not think that she will easily obtain other employment,
other than also with
a sympathetic employer.
[94]
With regard to transport, the plaintiff explained that she uses two
taxis to travel to work and back to her
home. Luckily both
taxis pick her up near her house and drops her off near to her place
of employment. At this stage
she is able to make use of this
transport, since she does not have to walk long distances, since
walking causes her pain and causes
her ankle to swell even more.
[95]
When asked about her dreams, she testified that she would like to
open her own business in order to make
a better living for her kids
and her loved ones. She loves the restaurant business and would
like to open her own restaurant.
She would be able to do that
if she has people to assist her at the restaurant.
[96]
She testified that she can’t just wear any shoes, since a
particular shoe would fit her left foot,
but then not her right foot,
because of the swelling. She therefore normally has to wear open
shoes so that she can just push her
feet in. She used to like
wearing shoes with high heels, but since the accident she is unable
to do so.
[97]
The plaintiff also testified that after work her leg and her ankle
will be swollen, with the result that
where she used to do exercises
after work, she does not see her way open to do it anymore. It
feels like she just wants to
get home and elevate her leg in order to
get the swelling down. She explained that elevation of her leg,
decreases its swelling.
However, at work she cannot elevate her
leg, since the business area is too small and people has to be able
to pass by her.
[98]
Before cross-examination the legal representatives indicated to me
that the matric qualification of the plaintiff
is not in dispute.
[99]
During cross-examination the plaintiff testified that she works at
the coffee shop from 7h00 to 17h00.
In a 7-day week they are
two or three days off per week. When she started working there,
they worked in shifts from 06h00
to 13h00 and then the following day
from 13h00 to 20h00. However, it has now been a year since they
have not been working
in shifts.
[100]
In cross-examination the plaintiff again testified that at the
biltong shop she used to earn R4 200-00 per
month as a basic
salary prior to the accident, and following the accident she received
approximately R3 700-00 per month.
[101]
She explained that since the accident, she has not applied for any
other jobs, since all the jobs she hears about
require her to work
for long hours, which she is unable to do due to her injury.
[102]
The plaintiff was cross-examined on the aspect of the Torado shop
which Ms Greyling testified about. The
plaintiff explained that
she received her training there, since Torado Shop is part of her
present employer. Torado Shop
is situated at the Pitstop Garage
on the N1. She worked there only on an ad hoc basis.
[103]
During re-examination she testified that she uses Grandpa pain
stiller about twice a week. She experiences
the most pain and
uncomfortableness after work. She cannot wait after work to get
home in order to elevate her leg and ankle.
[104]
With regard to her mental state, the plaintiff testified that prior
to the accident she suffered from no mental
problems. However,
since the accident she suffers from depression and she easily forgets
things and feels that she will not
be able to have the future she
dreamed of before the accident. She experiences anger because
of her injured condition and
it has a negative impact on her work and
at home. Where the plaintiff previously enjoyed socializing,
she does not want to
socialize anymore. She, however, conceded that
she has not consulted any specialist in respect of her mental
feelings and -problems.
[105]
Mr
Ben Moodie
, an
Industrial Psychologist
, also
presented oral evidence in court and his report was received as
exhibit “C”. He performed his evaluation
of the
plaintiff on 6 August 2019.
[106]
Mr Moodie testified that he postulated the plaintiff’s future
career path based on her pre-accident career.
He explained that
it is not an exact science since one can only work on the facts you
have and based on those facts one has to
postulate an unknown future.
[107]
With regard to the plaintiff’s pre-accident income potential,
Mr Moodie referred to the fact
that the plaintiff
has a Grade 12 level of education and no further formal training.
He also dealt with her work at the biltong
shop prior to and after
the accident and the difference in her income and working conditions
between the two time periods.
[108]
Mr Moodie dealt with the complaints the plaintiff voiced when he
performed his evaluation. In this regard
he recorded the
following:
1.
Her right lower limb is swollen at the end of her working day.
2.
She experiences constant pain in her right ankle causing great
discomfort after work and
the following day.
3.
The pain is worsened by physical activity.
4.
Right lower limb fatigue after working when walking to the taxi
stop. She voiced that
she has to assist her leg using her hands
to climb into the taxi.
5.
Memory forgetting often and quickly.
6.
Aggression – getting angry easily.
7.
She is very emotional.
8.
She states that the movement of her ankle is limited, weak and
painful.
9.
She also continues to experience stiffness and swelling in her
ankle.
10.
Cold weather aggravates the pain.
[109]
Mr Moodie testified that was shocked to see in court how the size of
the plaintiff’s ankle has increased
since he evaluated her and
also how much her weight has increased.
[110]
Mr Moodie dealt with the plaintiff’s career history prior to
the accident. In this regard he also
obtained collateral
information from the store manager at the biltong shop who,
inter
alia
, advised him that he did not have any problems with the
plaintiff’s work, both prior and following her accident.
Although
he denied that the plaintiff received a lesser income after
the accident, Mr Moodie testified that he does not find it strange
that the employer would not admit having decreased the plaintiff’s
salary, since it is against the law to have done so.
The store
manager confirmed that at the time when the plaintiff resigned, she
was earning plus minus R3 900.00 per month in cash.
[111]
Much of what Mr Moodie testified has already been testified by the
other expert witnesses and the plaintiff herself
and are not in
dispute, wherefore I am not going to repeat such aspects.
[112]
Mr Moodie testified that the fact that the plaintiff resigned and
stayed at home without an income, whilst she
was the sole
breadwinner, is indicative of the degree of pain and
uncomfortableness she was experiencing.
[113]
Mr Moodie testified that the biltong shop closed down in June 2018.
Therefore, with regards to her pre-accident
work, Mr Moodie
postulated that but for the accident, she would have been able to
continue working in her pre-accident capacity
at the biltong shop,
earning plus minus R3 900-00 per month as she did prior to the
accident.
[114]
Regarding the plaintiff’s application to be employed at the
SAPS in her uninjured capacity, Mr Moodie opined
that she would have
been successful in all her assessments, which would have allowed her
to be sent to the police college by January
2018. He explained
that with regard to the physical test that she was still due to
perform prior to the accident, fitness
is no longer a requirement, in
order not to discriminate between applicants. When he considers
her as a person, he is sure
that she would have progressed to the
position of warrant officer. Furthermore, whilst doing her
training at the police college
she would have received a stipend
salary.
[115]
In his report Mr Moodie referred to collateral information which he
obtained from the Personal Manager at SAPS
Bloemfontein:
“
1.
The recruitment process is as follows:
2.
First you do a psychometric assessment, where
after an integrity
assessment is done on the same day.
3.
Successful candidates then get scheduled for
a Physical/Fitness test.
4.
After being successful in the Physical/Fitness
test, you get
scheduled for a formal interview.
5.
Upon successfully passing the interview, you
are then sent for a
medical assessment.
6.
After completing the above-said successfully,
you qualify to become a
Student Constable. However, this will only apply if you form part of
the number of intakes for the year
as they can only take in a certain
number of successful candidates based on available funds.
7.
Student constables earn a monthly Stipend
of R4 500.00 per
month.”.
[116]
The psychometric result was already provisionally accepted as exhibit
“D” subject to later argument.
[117]
With regard to the postulation of her future career path, Mr Moodie
testified that the applied contingency should
be a lesser one, since
she already successfully completed matric and also successfully
completed the psychometric tests.
He opined that it is 99%
sure that she would have been successful in her application to become
a police officer.
[118]
With regard to her probability to have become a warrant officer, he
testified that warrant officer level is not
an officer level, it is
still a junior level. Candidates do not go through selecting
processes and interviews in order to
become a warrant officer.
It is only for purposes of the ranks higher than warrant officer that
a stricter selection process
is applied in order to obtain the rank
of officer.
[119]
Mr Moodie testified that he is “
absolutely sure she would
have gone to warrant officer level
”.
[120]
In his report Mr Moodie noted the following:
“
5.4
Writer notes that progressing through the different ranking she would
have progressed through the rankings
as follows:
5.5
From Band A Constable to Sergeant.
5.6
From a Sergeant to a Band B1 Warrant Officer.
5.7
From a Band B1 Warrant Officer to a Band B2 Warrant Officer.
This has been confirmed with Col.
Mynhard from Performance Management
Systems in the SAPS in Bloemfontein.
5.8
Noting the above-said, writer notes that Mrs Madikoe would have been
aged 24 at the time she started
working as a Band A Constable
functioning on Nodge 1, i.e. R175 586.00 plus the normal
government benefits (Providend Fund,
medical aid, housing allowance,
etc.). Writer therefore opines that it is reasonable to accept
that she would have been able
to at least progress in a straight line
to the rank of Band B1 Warrant Officer, by age 45, i.e. R278 631.00
Nodge 1.
Note that this does not include any of the normal
government benefits associated with that of a Warrant Officer.
This would
have been her career ceiling and she would have only
benefited from nodge and inflationary increases until retirement age.
5.9
But for the accident, Mrs Madikoe would have been able to work until
the normal retirement age of 60.
This is the confirmed said
retirement age as per Col. Mynhard.”
[121]
With regard to the plaintiff’s post-accident income potential,
Mr Moodie referred to the comments by the
previous manager at
Vida-e-Café:
“
6.6.1
Mrs Madikoe’s leg was swollen constantly and she could not
stand through-out her shifts.
6.6.2
She was unable to wear tekkies because of her foot being swollen, she
was therefore allowed to wear fish flops
to work.
6.6.3
Mrs Madikoe always complained about pain in her leg.
6.6.4
She tried to accommodate Mrs Madikoe by allowing her to stay behind
the till point most of the day and not to
do any work in the floor,
i.e. serving customers, preparing drinks, etc.
6.6.5
Vida-e-Café is a small shop therefore no promotional
possibilities is available for her and this is not
accident related.
6.6.6
Staff consists of 8 Baristas, one manager and the owner.
6.6.7
The said manager stopped working at Vida-e-Café in December
2019.”
[122]
Mr Moodie also referred to the respective aspects of the medical
report of Dr Deacon, especially the fact that
with successful
treatment, the productivity of the plaintiff will improve, but as
degeneration in her right ankle progresses, her
productivity will
decrease again. He also referred to the fact that Dr Deacon
opined that Mrs Madikoe must be permanently
accommodated in a
sedentary to light work environment and that in her uninjured
capacity she would have been able to work until
the normal retirement
age of 65, but as a result of her accident related injuries,
provision must be made for 5-years earlier retirement.
[123]
Mr Moodie also referred to the opinions of Ms Greyling.
[124]
Mr Moodie testified that due to the fact that the plaintiff is
presently the only breadwinner at home, she is
not in a position to
stop working without having an alternative source of income to live
off. Mr Moodie therefore opined
that the plaintiff would in all
probability continue working as a cashier who is required to remain
seated for most of the working
day. He further opined in his
report as follows:
“
6.10
… This will probably take her up to two years,
still earning on par with her current earnings, as indicated
above
under point 6.3. Thereafter, she would progress in the
non-corporate sector between earning a monthly basic salary
of
R8 000-00 – R10 000-00 within 5–seven years as
she gains experience. This, would probably, have
been
sufficient work experience for her to secure employment in the
corporate sector, therefore she would by this time be able
to secure
employment, where she could function on par with a median of
Patterson level B1.
6.11
Noting that she will now only enter the corporate sector
much later, she will likely now only reach her career
ceiling much
later than what she would have in her uninjured capacity.
Writer therefore opines that she will now progress
to the Patterson
level B3/B4 by age 55 - 58. These earnings are on par where the entry
level earnings of a Band 1 Warrant Officer.
Thereafter, only
inflationary increase will apply.”
[125]
Mr Moodie further opined as follows in his report:
“
6.12
A contingency deduction should be applied to cater for future pain
related symptoms and the psychological effects that
pain will have on
her ability to sustain employment until retirement. It is a
common fact that chronic and ongoing pain have
an adverse effect on a
person’s ability to be motivated, hardworking and goal driven
in order to give one’s utmost
best.
6.13
If her pain is of such a nature in future that it effects the overall
motivation and drive to compete and
sustain her work, then she will
be seriously disadvantaged in the open labour market for any other
type of job that would be available
at that stage. It is for
this reason that even in a sedentary or clerical type of work,
provision should be made for the
possibility/probability that pain
related symptoms will affect her ability to work until the normal
stipulated retirement age.
This however falls outside the scope
of writer’s expertise and therefore defers to the orthopaedic
surgeon for further comments.”
[126]
The Actuary report of the
actuary
,
Mr Johan Sauer
,
dated 3 May 2023, was handed in as Exhibit “E”, by
agreement between the parties.
[127]
The calculations in the said report are based upon the career of the
plaintiff pre-accident and post-accident, past
income and future
income, as testified by the plaintiff herself and the plaintiff`s
witnesses.
[128]
That concluded the case for the plaintiff. The defendant closed its
case without the presentation of any evidence.
Evaluation
of the evidence:
[129]
I have thoroughly dealt with all the evidence and do not intend to
repeat same in my evaluation of the evidence. The
question is whether
the plaintiff presented a
prima facie case,
which, in the
absence of evidence to the contrary, becomes proof on a balance of
probabilities. In this regard Mr Marx referred
to the judgment of
Prince v Road Accident Fund
(CA143/2017) [2018] ZAECGHC
20 (20 March 2018) at paras [55], [56] and [59]:
[55] Sufficient
proof is established when an inference can be drawn about the fact in
issue, providing that the inference is
consistent with all the proven
facts. In civil matters, it suffices if the inference is the
most probable inference.
[56] Further,
once
prima facie
proof or evidence has been
provided, that is proof calling for an answer. This becomes
conclusive proof on the point
in issue usually if no evidence is
produced to rebut it. The fact of the matter is, however, that the
Court must at the end of
the case review all the evidence and
evaluate this according to the applicable primary criterion.
…
[59] It
must be accepted, of course, that where, for example, a Defendant
fails to produce evidence, this does not mean necessarily
that the
opponent’s version in the case, falls to be accepted. The
acceptance of Plaintiff’s case depends on
the probative
strength of Plaintiff’s case, being whether or not it is
sufficient to cast, an evidential burden on the Defendant
to present
evidence.”
[130]
The plaintiff testified in English and presented her case in a
chronological, well-structured manner. She
impressed me as a witness
and her evidence turns out to be substantiated by the evidence of the
expert witnesses, both in relation
to her career to date and her
injuries and the sequelae thereof. There is no reason why her
evidence is not to be accepted.
[131]
Both Mr Marx and Ms Bornman addressed the issue of the function of
expert witnesses and the evaluation of their
evidence, with reference
to relevant case law.
[132]
The expertise of the relevant expert witnesses is not in dispute.
[133]
In
Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung Mbh
1976 (3) SA 352
(A) the following was stated at 371:
“
As
I see it, an expert's opinion represents his reasoned conclusion
based on certain facts on
data
,
which are either common cause, or established by his own evidence or
that of some other competent witness. Except possibly where
it is
not controverted, an expert's bald statement of his opinion is
not of any real assistance. Proper evaluation of the
opinion can only
be undertaken if the process of reasoning which led to the
conclusion, including the premises from which the reasoning
proceeds,
are disclosed by the expert.”
[134]
The following relevant principle was reiterated in
Road
Accident Fund v Zulu and Others
(50/11)
[2011] ZASCA 223
(30
November 2011), which Ms Bornman also referred to:
“
[14]
I have already alluded to the fact that the learned judge in the
court below relied heavily on the evidence of Dr Holmes, an
expert
witness. A useful guide to the approach of expert evidence is found
in
Michael
v Linksfield Park Clinic (Pty) Ltd
where
the court stated:
'.
. . what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced are
founded on logical reasoning.'”
[135]
Ms Bornman stated as follows in her heads of argument and also
presented the same argument during her oral argument:
“
6.
With regards to the loss of earnings component, the main point of
contention is the plaintiff`s
pre-morbid career path. The plaintiff
wants the court to rule that she would have succeeded in her alleged
application to SAPS,
and that she would have been appointed as a
Student Constable and would have progressed to the rank of Band B2
Warrant Officer.
7.
The defendant will argue that the plaintiff- was not appointed in any
position at SAPS at
the time of the accident, and there is no
evidence to show on a balance of probabilities that the plaintiff
would have been successful
in her application to SAPS”
[136]
Ms Bornman also referred to the collateral information from the SAPS
Personnel Manager which Mr Moodie reflected in
his report and
submitted that at best for the plaintiff she had only passed one of
the four stages of the recruitment process,
being the psychometric
and integrity test. Ms Bornman further submitted that there was no
evidence as to how many recruits would
have been taken in that year –
or the number of positions that were available and the number of
successful candidates.
[137]
In response Mr Marx submitted that the uncontested evidence before
court was not to prove on a balance of probabilities
that the
plaintiff would have been successful in her application to SAPS, but
on a balance of probabilities that the plaintiff
had all qualities
and qualifications to be successful and to be one of the candidates
to be accepted as a member of SAPS
or any other career in line
or on par with a similar career path
. Mr Marx used the
comparison which is daily argued and accepted by our courts, in
similar type of matters, where a court accepts
a postulated career
path of what a scholar would have been able to achieve post-morbidly,
if he/she was to finish matric or even
obtain a degree or diploma
without that scholar having started with a career yet.
[138]
In further support of Mr Marx`s argument he submitted that the
uncontested evidence shows the plaintiff as a person
who:
1.
obtained a grade 12 qualification;
2.
successfully applied for a position at two businesses, one pre-morbid
and the other post-morbid, and
managed to keep her employment despite
great adversity and harm to herself;
3.
applied at the SAPS and successfully completed and passed a very
important part of the admission process;
4.
testified in English in court, whilst English is not her mother
tongue, despite which she presented her
evidence and herself in an
impressive manner;
5.
keeps on working and earning an income in her current job, although
being employed sympathetically and
accommodated within her workplace,
a job which causes her daily pain and uncomfortableness and which the
experts advise against
for the sake of her own health.
[139]
I have to agree with the contentions of Mr Marx. The plaintiff is
clearly a proverbial “go-getter” who does
not easily back
off in adverse circumstances. She has also shown her attitude
of having wanted to better her life for the
sake of herself and her
loved ones.
[140]
What is also very important is the evidence of Mr Moodie of his
experience as Chief Psychologist in the SAPS which was
extracted
during his evidence in chief and cross-examination.
Mr Moodie
testified that he holds a master degree in Industrial Psychology. He
started his career in the defence force and then
he was employed by
the SAPS Psychology Department where he achieved the rank of Captain.
He was employed by the SAPS as Chief Psychologist
for the
Witwatersrand District for two years, during which time he assisted
with the development of the Psychometric tests for
the Police.
Consequently, he has intimate knowledge of the nature and purpose of
the said tests and how important they are considered
to be in the
recruiting process. This factor, as well as the character, motivation
and determination of the plaintiff, caused him
to testify that he is
sure that she would not only have been successful with the
recruitment process, but also that she in all
likelihood would have
reached the rank of warrant officer.
[150]
In any event, Mr Moodie also testified that if she would not have
followed the SAPS route pre-morbid, but the corporate route,
she
would have in any event earned a pre-morbid income which equates
Patterson B3/B4, which is similar to that of warrant officer
with the
rank of Band B1.
[160]
I consequently accept Mr Moodie`s report, evidence and opinions which
completely complied with the requirements
for expert evidence to be
reliable and acceptable. The same goes for the two other expert
witnesses. I will return to an
additional part of Mr Moodie’s
evidence when I deal with the contingencies.
Contingencies:
[161]
It is trite that it is for the court to determine the percentage of
contingencies to be applied in a matter
such as this.
[162]
Contingencies discount the vicissitudes of life and it is a method
used to arrive at fair and reasonable compensation.
The question of
contingencies was dealt with in
[zRPz]
Southern
Insurance Association Ltd v Bailey N.O.
1984 (1) SA 98
(A) at
113G and 116G – 117A:
“
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.
…
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is ‘tied down by inexorable actuarial
calculations’. He has ‘a large discretion to award what
he considers right’ (
per
HOLMES
JA in
Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A)
at 614F). One of the elements in exercising that
discretion is the making of a discount for ‘contingencies’
or the
‘vicissitudes of life’. These include such matters
as the possibility that the plaintiff may in the result have less
than a ‘normal’ expectation of life; and that he may
experience periods of unemployment by reason of incapacity due
to
illness or accident, or to labour unrest or general economic
conditions. The amount of any discount may vary, depending upon
the
circumstances of the case. See
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A)
at 114 - 5. The rate of the discount cannot of
course be assessed on any logical basis: the assessment must be
largely arbitrary
and must depend upon the trial Judge's impression
of the case.
…
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz v
Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
‘
It
is a mistake to suppose that it necessarily involves a 'scaling
down'. What it involves depends, not on arithmetic, but on
considering
what the future may have held for the particular
individual concerned... (The) generalisation that there must be a
'scaling down'
for contingencies seems mistaken. All 'contingencies'
are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff
might have had prospects or chances of advancement and
increasingly remunerative employment. Why count the possible buffets
and
ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have
balanced or even outweighed the risk of bad.’”
[163]
In the judgment of
Gillbanks v
Sigournay
1959 (2) SA 11
(N) the
following was stated at 17 E – F in respect of contingencies in
an estimation of a plaintiff`s claim for loss of
earnings:
“
In
any estimate of a person's loss of earning capacity allowance must be
made for all contingencies including the accidents of life
and
certain deductions must be made from the estimated gross income to
allow for unemployment benefits, insurance and so on. These
contingencies would include -
(i)
a possibility that plaintiff's working life may have been less than
sixty-five years;
(ii) a
possibility of his death before he reaches the age of sixty-five
years;
(iii) the
likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation
and deflation;
(vi) alterations
in the cost-of-living allowances;
(vii) an
accident whilst participating in sport such as hockey or cricket,
or at any other time which
would affect his earning
capacity; and
(viii) any
other contingency that might affect his earning capacity.”
[164]
In the judgment of
Dlamini v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646 (3 September 2015) at paras [30] –
[32] the court dealt with and applied some guidelines referred
to by
Koch in The Quantum Year Book:
“
[
30] Koch
refers to the following as some of the guidelines as regards
contingencies:
‘
Normal
contingencies’ as deductions of 5% for past loss and 15% for
future loss.
‘
Sliding
scale’: 1/2 % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age and relies
on Goodall
v President Insurance
1978 (1) SA 389.
‘
Differential
contingencies’ are commonly applied, that is to say one
percentage applied to earnings but for the accident,
and a different
percentage to earnings having regard to the accident.
[31] When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so
with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position
of the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse
contingencies have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred.”
[165]
Ms Bornman submitted that the so-called “normal contingencies”
cannot apply in this instance, specifically
so because the “
uninjured
scenario is speculation upon speculation”.
[166]
Mr Marx pointed out that in the actuarial calculations by
Mr Sauer,
dated 3 May 2023, the contingencies that were used, were 5% deduction
for past earnings, both pre-morbid and post-morbid,
and 15% deduction
for future earnings pre-morbid and 35% deduction for future earnings
post-morbid.
[167]
Firstly, I cannot agree with the submission of Ms Bornman
regarding
“speculation”, for the reasons already dealt with above.
[168]
With regard to post-morbid future loss of earnings, Mr Marx correctly
pointed out that after Mr Moodie attended
court and listened to the
evidence of Ms Greyling, Dr Deacon and the plaintiff. He testified
that the plaintiff`s position is much
worse than he originally
projected in his report. He testified that her injuries did not
improve, but worsened. She did not progress
as he initially
projected. He is of the opinion that she will now only be able to
find a suitable job much later and that he does
not think that she
will be able to outperform her colleagues, considering her injuries
and her present position and consequently
Mr Moodie does not think
that the plaintiff will be able to proceed beyond R8 000 per
month. Therefore, a higher contingency
should be applied. Mr Marx
submitted that 15% pre-morbid and 55% post-morbid should be applied.
[169]
In principle I agree with the submissions by Mr Marx, except that I
am of the view that a 50% contingency
for future earnings post-morbid
will be fair and reasonable in all the circumstances. This fact is
also specifically confirmed
by the remark of Mr Sauer that the higher
future post-morbid contingency deduction is “
to allow for
increased employment vulnerability, labour incapacity uncertainty
possible long periods of unemployment and early retirement”
,
which is 100% in accordance with the opinion of Mr Moodie in this
regard.
[170]
Mr Sauer will consequently be requested to prepare an actuarial
calculation on the present postulations, but with a 50% contingency
for future losses post-morbid, and updated to date of this order.
General
damages:
A:
Principles applicable to the quantification of general damages
[171]
In
D v Road Accident Fund
(15/24390) [2017] ZAGPJHC 61
(3 March 2017) at para [17] the Court confirmed the following
principle:
“
[17]
In determining general damages the court is called upon to exercise
its discretion to award what it considers to be fair and adequate
compensation having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries sustained
by him including their nature, permanence, severity and their impact
on his lifestyle.”
[172]
Furthermore, previous comparable awards, adjusted to reflect current
values, are considered as guidelines as to
what would be a fair and
reasonable award towards both the plaintiff and the defendant in the
circumstances of a particular case.
See
Road Accident Fund v
Marunga
2003 (5) SA 165
(SCA) at para [23].
[173]
Although comparable cases offer some guidance in assisting a court to
arrive at its award, it should not be viewed
as an absolute standard.
This principle was affirmed in
Protea
Assurance Co. Ltd v Lamb
1971
(1) SA 530
(A) at 536, where, as pointed out by Mr Cross, it was
stated that a comparison of the plaintiff`s general damages with that
of
previous awards need not take the form of a meticulous examination
of awards made in previous cases in order to fix an amount of
compensation and nor should the process be allowed to dominate the
enquiry so as to fetter the general discretion of the court.
See also
De Jongh v Du Pisanie NO
[2004] 2 ALL SA 565
at
paras [64] – [65]
[174]
In the
Marunga
-judgment,
supra,
at para [27]
the Supreme Court of Appeal also considered the following approach as
instructive:
“
[27]
In the
Wright
case
(
Corbett
and Honey
vol
4 E3-36) Broome DJP stated:
'I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher
than they were in the past. I believe this to be a natural
reflection of the changes in society, the recognition of greater
individual freedom and opportunity, rising standards of living and
the recognition that our awards in the past have been significantly
lower than those in most other countries.'
[28]
The
Wright
case at E3-34 - E3-37 is instructive. …”
B:
Nature, extent and seriousness of the injury and its sequelae
[175]
The nature, extent and seriousness of the injuries, as well as the
sequelae thereof, are already on record and I approach
this matter
based on the evidence of the respective experts in this regard.
C:
Comparable case law
[176]
In the amended particulars of claim the plaintiff is seeking payment
of R600 000.00 in respect of general damages.
[177]
I have duly considered the comparable case law which the parties
referred to in their respective heads of argument, namely:
1.
The plaintiff:
1.1
Mafulako
v Road Accident Fund
(18338/2017) [2020] AGPPHC 477 (28 August 2020)
1.2
Tlhakane
v Road Accident Fund
(29632)
[2015] ZAGPPHC 853 (24 November 2015)
1.3
Abrahams
v Road Accident Fund
(1531/2010 [2012] ZAECPEHC 37 (29 May 2012)
1.4
Nyawose
v Road Accident Fund
(14546/2018) [2021] ZAGPPHC 506 (10 August 2021)
2.
The defendant:
2.1
Usuf
Sabodien v Road Accident Fund
[2021] LNQD 4 (WCC
2.2
Gatya
v Member of the Executive Council, Department of education, Eastern
Cape
[2019] LNQD 69 (ECP)
[178]
Based on the aforesaid comparative cases, Mr Marx submitted that
R575 000.00 would be fair and reasonable,
whilst Ms Bornman
submitted that R350 000.00 would be a fair and reasonable amount
in relation to the plaintiff`s general
damages.
[179]
In my view an award of general damages in the amount of R450 000
is fair and reasonable in the totality
of the relevant facts and
circumstances of this matter.
Costs:
[150]
There is no reason why costs should not follow the outcome of this
matter.
Order:
[151]
I consequently make the following order:
1.
The defendant is liable to pay 90% (Ninety Percent) of the
plaintiff's proven damages.
2.
The defendant shall furnish the plaintiff with an Undertaking, in
terms of
Section 17(4)(a)
of Act 56 of 1996, limited to 90% (Ninety
Percent) in respect of future accommodation of the plaintiff in a
hospital or nursing
home or treatment of or the rendering of a
service or supplying of goods of a medical and non-medical nature to
the plaintiff (and
after the costs have been incurred and upon
submission of proof thereof) arising out of the injuries sustained in
the collision
which occurred on 5 October 2017.
3.
The defendant is awarded the sum of R450 000.00 (Four
Hundred
and Fifty Thousand Rand) in respect of general damages, 90% (Ninety
Percent) of which amount the defendant is ordered to
pay to the
plaintiff, namely R405 000.00 (Four Hundred and Five Thousand
Rand).
4.
The plaintiff`s attorney of record is ordered to forthwith request
the actuary,
Mr Johan Sauer,
to
prepare an actuarial calculation on the present postulations, dated 3
May 2023, but with a 50% contingency for future earnings
post-morbid,
and updated to date of this order.
5.
Leave is granted to the parties to approach Van Zyl, J in
chambers, once the aforesaid calculation is received, with a draft
order
to obtain a further order for the payment by the defendant to
the plaintiff of 90% (Ninety Percent) of the amount calculated as
aforesaid.
6.
The defendant is to pay the plaintiff's taxed or agreed party and
party costs of the action, which costs shall include, but not
be
limited to the following:
6.1
Previously reserved costs.
6.2 The
reasonable qualifying, preparation- and reservation fees and costs of
obtaining reports and the evidence, where
applicable, of the
following experts:
Dr
MB Deacon, Orthopaedic Surgeon;
Ms Luna Greyling,
Occupational Therapist;
Mr Ben Moodie, Industrial
Psychologist; and
Mr Johan Sauer, Actuary.
6.3 Counsel`s
fees, including, but not limited to, the costs of drafting heads of
argument.
7.
The aforesaid costs are also to include the additional
costs
for obtaining the newly calculated and updated report from Mr Johan
Sauer, referred to in paragraph 4 above, as well as any
consequential
costs incurred for it to be made an order of Court.
8.
The above-mentioned payment with regard to costs
shall be subject to
the following conditions:
8.1 The
plaintiff shall, in the event that costs are not agreed, serve a
notice of taxation on the defendant's attorney
of record.
8.2 The plaintiff shall
allow the defendant 14 (fourteen) calendar days to make payment of
the taxed costs.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv DJ Marx
Instructed by
:
Du Plooy Attorneys
BLOEMFONTEIN
Ref: Du Plooy/V652
On
behalf of the defendant:
MS C Bornman
Instructed by:
Offices
of the State Attorney
BLOEMFONTEIN
Ref: Link 4330584 /
Ms
C Bornman.