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2023
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[2023] ZAFSHC 221
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Theunissen v Goldfields Resort (Pty) Ltd and Another (3520/2017) [2023] ZAFSHC 221 (1 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number:
3520/2017
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
BEATRIX
GERDA THEUNISSEN
Plaintiff
and
GOLDFIELDS
RESORT (PTY) LTD
1
st
Defendant
VIGINIA
PARK HOTEL (PTY)LTD
t/a
TIKWE LODGE
2
nd
Defendant
CORAM:
M E MAHLANGU, AJ
JUDGMENT
BY:
M E
MAHLANGU, AJ
HEARD
ON:
9 MAY
2023
DELIVERED
ON:
1 JUNE
2023
Introduction
[1]
The plaintiff, Beatrix Gerda Theunissen, instituted a dilictual claim
against the defendants for
damages arising from the injuries she
sustained following an incident that occurred at Tikwe Lodge, the
second defendant, on 8
February 2016 during which she stepped onto a
manhole which partially disintegrated and gave way causing her to
fall into the manhole
and sustain injuries.
[2]
The merits were settled on 19 November 2019 in terms of which the
defendants agreed to pay 70%
of the plaintiff’s proven and/or
agreed damages.
[3]
At the start of the trial, the past medical expenses to the amount of
R20 318.39 and general
damages to the amount of R204 202.44
were settled between the parties.
[4]
The only issues to be adjudicated upon by this court are quantum of
the plaintiff’s claim
in relation to loss of earnings and her
claim for future medical expenses.
[5]
The experts reports of Mrs A Jansen the occupational therapist and Dr
E Jacobs the industrial
psychologist were accepted and admitted as
evidence as per the agreement between the parties.
Plaintiff’s
evidence, injuries and sequelae
[6]
The plaintiff was 40 year old at the time of the incident. She was
self-employed as a valuer and
had been working as a valuer for a
number of years. At the time of the accident, the plaintiff was
performing property inspection
at the defendants’ property. Her
occupation as valuer entailed frequent travelling, walking and
standing.
[7]
After completing her Grade 12 certificate she proceeded with her
studies and she obtained a National
Diploma in Commercial
Administration and a National Diploma in Real Estate Property
Evaluation.
[8]
The plaintiff sustained the following injuries as a result of the
accident: an injury of the lumber
spine resulting in chronic pain and
spasm, a soft tissue injury of the knee with a possible medical
meniscus tear and a soft tissue
injury on the ankle with residual
pain.
[9]
Following the accident the plaintiff was transported to her private
General Practitioner where
she was prescribed with oral analgesics.
She cleaned her abrasions at home.
[10] On
17 February 2016 the plaintiff presented herself at Bloemfontein Madi
Clinic as she had persistent pain
in her lower back, right knee, left
knee and left ankle. She was admitted at the Medi Clinic and was
discharged on 19 February
2016.
[11]
The plaintiff testified that she is still experiencing acute pain as
a result of the accident. She struggles
to get out of bed, cannot
walk long distances, cannot sit for long periods and struggles with
any physical activity, especially
because of her back pain.
[12]
The plaintiff was wearing a back brace whilst testifying in court as
per Mrs A Jansen’s recommendation.
Expert witnesses’
evidence
[13] I
do not intend dealing with the detail of the plaintiff’s expert
reports. I have considered the contents
of the said reports, in
conjunction with the respective heads of arguments filed by the
parties. I will however shortly refer the
evidence of Dr Oelofse and
Ms Valentini that was orally given to court.
[14] Dr
Oelofse, a specialist orthopaedic surgeon, testified that the most
debilitating injury sustained by the
plaintiff is the lumber spine
injury. He testified that the injuries sustained by the plaintiff had
a profound impact on the patient’s
productivity, working
ability and amenities of life, and will continue to do so in future.
He testified that, the back pain suffered
by the plaintiff will
exaggerate her quality of life and will develop progressive pain. The
plaintiff would not be able to continue
doing the work she used to do
because of the pain. Dr Oelofse’s report was accepted by the
court as evidence.
[15]
The actuarial calculations were prepared by Ms J Valentini, Mr W
Boshoff and Mr C Du Plessis of Munro Forensic
Actuaries. Ms J
Valentini testified that she co-signed the report. The basis
postulated by the industrial psychologist were used
to arrive at an
amount of R1 527 306.00 for the plaintiff’s loss of
income after apportionment. They further calculated
the total
capitalised costs for future medical expenses after apportionment in
the amount of R930 244.00.
[16]
The defendants submitted in paragraph 41 of their heads of arguments
that:
“
41.
If the court finds
that plaintiff is in fact able to do sedentary work, which I humbly
submit is the case, then the calculations
of Messrs Munro Forensic
Actuaries is incorrect as Plaintiff would have earning capacity and
accordingly the actual future loss
of income is less than
calculated
.”
[17]
The plaintiff submitted in paragraph 8 of her heads of arguments
that:
“
8.
The acceptance of the medico-legal reports of Jansen and Dr Jacobs by
the Defendant thus affectively
closed the door on any arguments,
opinions and factual averments contrary to the expert opinions
evidenced in these reports. It
must therefore be accepted that the
Plaintiff, as evidenced by Jansen and as catered for in the report by
Dr Jacobs does retain
a residual working capacity of the premises
that such work will have to be of a sedentary nature
.”
[18] I
am in agreement with the plaintiff’s submissions. The expert
reports of Mrs J Jansen and Dr Jacobs
have been admitted into
evidence undisputed. There is no basis for the defendants arguments
as there is no evidence to substantiate
it.
Contigencies in
general
[19] It
is trite that the issue of contingencies fall within the discretion
of the court.
[20] In
the matter of
Southern Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(AD)
at paragraph 116G-117A Nicholas JA stated that:
“
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 “large discretion to award what he
considers right” (per HOLMES JA in Legal Assurance Co
Ltd v
Boles
1963 (1) SA 608
(A) at 614F). One of the elements in exercising
that discretion is the making of a discount for ‘contigencies”
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. The amount of any discount may vary,
depending upon the circumstances of the case. See Van der Plaats
v
Sount 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
”.
[21] In
Sandler v wholesale Coal Suppliers Ltd
1941 AD 194
at
paragraph 199 Watermeyer JA stated that:
“
The
amount to be awarded as compensation can only be determined by the
broadest considerations and the figure arrived at must necessarily
be
uncertain, depending upon the Judge’s view of what is fair in
all the circumstances of case
.”
[22]
Mrs A Jansen, the occupational therapist stated in her report that,
spondylosis and chronic pain might affect
the productivity of the
plaintiff when required to perform sedentary work. She further opined
in her opinion that, considering
the plaintiff’s injuries as
well as the mobility restrictions, the plaintiff might not be
considered suited for manual labour
occupations where she would be
required to perform prolonged walking and standing or full light and
medium to heavier types of
physical work and she could therefore be
limited in her choices for employment within the open labour market.
The chronic pain
and degeneration of the spine will further impede
the plaintiff’s choice of employment.
[23] Dr
Jacobs, an industrial psychologist, stated the following in his
report at paragraph (3)(a):
“
a)
The following guidelines were made known by the experts: (1) her
capacity is at risk (2) she is
only suitable for sedentary work
demands with reasonable accommodation (3) she is no longer equally
competitive for jobs in the
labour market (4) she is not suitable for
her pre-incident job as valuer
”.
[24] I
accept that plaintiff has chronic pain that would impede her from
performing her daily duties as a valuer.
Considering the plaintiff’s
evidence and the expert evidence which was not contested, there is no
doubt that the plaintiff
suffered loss of earning capacity.
Loss of earnings
[25]
The actuaries calculated the past and future loss of earnings
based on contingencies of 5%, 15% and
35% respectively. The
actuaries arrived at the net past earnings of R643 245.00
and the future loss of earning of R1 538 620.00.
The
plaintiff’s total amount of the loss of earning as per the
actuaries calculations amounted to R1 527 306 after
apportionment. The defendant submitted that, they applied the 12,5%,
20% and 25% respectively on their contingency calculations
for the
past and future loss of earnings. The defendant arrived at the amount
of R592 462.50 on the past loss of earnings and R1 312 435.00
on the future loss of earnings. The defendant’s total amount
after apportionment is R1 333 428.25.
[26] I
am not being persuaded to deviate from the plaintiff’s 5%,15%
and 35% contingency calculation. The
defendant has made no case to
deviate from the plaintiff’s contingency calculations. The
actuaries calculations were based
on the information contained in the
Industrial Psychologist report which was admitted by the court as
evidence.
[27] In
the matter of
De Jongh v Gunther and another 1975(4) 78 (w)
at
80F it was stated that:
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by modern authors of certain
type of almanack,
is not numbered among the qualifications for judicial office
”.
[28]
The plaintiff referred the court to the matter
Duma v Road
Accident Fund (672/2014P) [2019] ZAKZPHC 17 (1 March 2019)
the
court stated the following in paragraph 36:
“…
.
It has generally been accepted that contingencies of 5 per cent to 15
per cent for past and future loss of income have been accepted
as
‘normal contingencies
”
[29]
That being said, on consideration of all the factors and evidence, I
am of the view that a contingency adjustment
of 5%, 15% and 35% to
plaintiff’s loss of earnings would be appropriate in the
circumstances.
Future Medical
expenses
[30] As
it has been mentioned herein above, the actuaries calculated the
total capitalist costs for future medical
expenses after
apportionment to the amount of R930 244.00. There is no evidence
by the defendants to dispute the amount. I
am therefore of the
opinion that based on the injuries suffered by the plaintiff as
alluded to herein above, the future medical
expenses as calculated by
the actuaries are fair and reasonable to the plaintiff.
CONCLUSION
[31] I
accordingly find that the actuaries contingency calculations, namely,
5%, 15% and 35% respectively applied
to the plaintiff’s loss of
earnings are fair and reasonable. The amount of R1 527
306.00 is a reasonable amount
for the plaintiff’s loss of
earnings. I further find that the future medical expenses as
calculated by the actuaries
to the amount of R930 244.00 are a
fair and reasonable.
[32]
Consequently, the draft order marked “X” is made an order
of court.
E. MAHLANGU AJ
Counsel
for Plaintiff:
Adv
A Sander
Attorneys
for Plaintiffs:
Honey
Attorneys
Honey
Chambers
Northridge
Mall
Kenneth
Kaunda Road
Bloemfontein
Ref:
HL BUCHNER/YV/126227
Counsel
for Defendants:
Adv
Bornman
Attorneys
for the Defendants:
Hill,
McHardy & Herbst INC
7
Collins Road
Bloemfontein
Tel:
051 447 2171
Fax:
086 51 888 02
Email:
daniel@ghmhi.co.za
Ref:
NAUDE/G24222