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2024
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[2024] ZAFSHC 113
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Mogorosi v Road Accident Fund (185/2018) [2024] ZAFSHC 113 (25 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
185/2018
In
the matter between
:
ELISA
MATHABO MOGOROSI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
PJJ ZIETSMAN AJ
HEARD
ON:
21 and 22 NOVEMBER 2023
DELIVERED
ON:
25 APRIL 2024
Introduction
[1]
On 21 October 2016 the Plaintiff, a female
registered nurse, was involved in a motor vehicle collision and
suffered physical injuries
and emotional damage.
[2]
When
the matter came before me the only outstanding head of damage was the
Plaintiff’s claim for loss of income
[1]
.
[3]
On the first day of the trial the legal
representatives of the parties recorded that it
is
agreed
that
the
expert
summaries
and
medico-legal
reports
of
Dr
L.F.
Oelofse and Dr M.D. Deacon (orthopaedic surgeons), Dr H.P. Kloppers,
(maxillo-facial and oral surgeon) and Dr D. Hoffmann (plastic,
reconstructive and cosmetic surgeon) shall serve as evidence before
court of both the factual recordings and medical opinions expressed
by the various medical experts.
[4]
The evidence of the Plaintiff, Mrs Alana
Gouws (occupational therapist) and Mr Ben Moody (industrial
psychologist) was presented
to court.
[5]
On the second day of the trial the legal
representatives agreed that the expert summary and medico-legal
report of Mrs Lindelwa
Grootboom (clinical psychologist) shall
likewise serve as evidence before court.
[6]
Lastly, after the Plaintiff presented the
evidence, the parties further agreed that the actuarial calculations
of Mr Johan Sauer
of Johan Sauer Actuaries and Consultants be handed
in as evidence before court. Mr Sauer’s actuarial calculations
postulates
five different scenarios which the parties presented to
him for calculation. However, the parties reserved the right to argue
which
actuarial scenario, and the contingencies to be applied
thereto, should be accepted by the court.
[7]
The RAF closed its case without presenting
any evidence.
The issues
[8]
The only real issue in this case is the
pre- and post accident career paths of the Plaintiff (as calculated
by the actuary and postulated
by the different scenarios) and the
contingencies to be applied to the actuarial calculations.
Injuries sustained and
discussion of the evidence
[9]
The Plaintiff is currently 31 years old and
working as a nurse at Lancet Laboratory in Bloemfontein.
[10]
During 2014 she obtained a Diploma in
Nursing from the Free State College of Nursing and at the time of the
accident she was employed
as a ward nurse at Welkom Medi Clinic.
[11]
She testified that during 2022 she resigned
from Medi Clinic because she could not cope with the physical demands
of a ward nurse
who was required to work a 12 hour shift of which at
least 8 hours requires standing and/or walking and handling of
patients, and
only 4 hours are sedentary in nature.
[12]
She explained that the critical job demands
at Lancet Laboratories are almost similar than that of a ward nurse
with one exception
namely that is not required of her to handle
patients and/or carry or lift heavy objects.
[13]
The admitted expert report of Dr Oelofse,
the orthopaedic surgeon, reveals that the Plaintiff suffered a facial
injury, a chest
injury, a right wrist injury, a left- hand injury,
right elbow and a right knee injury. She has no current complaints in
respect
of her head, chest, right wrist and left-hand injuries but
has long term sequelae of her right elbow and right knee.
[14]
Dr Oelofse diagnosed the Plaintiff with a
united right proximal ulna fracture with painful instrumentation,
chronic elbow pain,
mildly restricted range of movement of the elbow
with loss of extension, post-traumatic osteoarthritis of the elbow
joint and scaring.
He further diagnosed a right lateral tibia plateau
fracture with chronic knee pain, medial meniscus injury (possible
tear), pseudo-lateral
collateral ligament instability with
post-traumatic osteoarthritis of the knee joint.
[15]
The Plaintiff experiences pain in her right
elbow and knee. The pain is described as throbbing in nature. Cold
weather conditions,
lifting heavy objects and preforming household
chores are painful to endure. Her daily functioning is affected as
she is right-hand
dominant. She experiences pain her right knee when
standing and walking for prolonged periods of time, squatting and
climbing stairs
aggravates the right knee pain. She continues to
experience occasional stiffness and swelling of her right knee.
[16]
The
prognosis of her orthopaedic injuries are not good. Although she was
only 28 years old at the time of assessment
[2]
there was already moderate advanced osteoarthritis of her right elbow
and advanced right knee osteoarthritis and she has a high
probability
to require replacement surgeries for both her elbow and knee joints.
According to Dr Oelofse the first replacement
surgery is foreseen
within 10 to 15 years i.e. by 2030 to 2035.
[17]
In addition, Dr Oelofse is of the opinion
that the Plaintiff must be accommodated in a permanent light duty and
sedentary working
environment, as determined by an occupational
therapist and even if accommodated provision must be made for 5 to 10
years early
retirement.
[18]
Mrs Alana Gouws, the occupational
therapist, categorised the Plaintiff’s pre- accident work as
light work with aspects of
medium to heavy work when required to
handle patients. She is of the opinion, given the Plaintiff’s
physical limitations
of her right elbow and right knee, that the
Plaintiff meets the physical demands for sedentary and light work but
she will not
be able to cope with medium to heavy load handling
demands, like handling patients. The Plaintiff is thus only partially
suited
for her pre-accident work demands and is considered not to be
an equal competitor in the open labour market.
[19]
Mr Ben Moodie, the industrial physiologist,
postulated two scenarios had the accident not occurred (the “but
for” scenario).
The first is that the Plaintiff would have
continued working at a private health institution earning income on
Paterson level C2
and progressing to the position of a nursing
manager at Paterson level C3/C4by the age of 45 – 50. The
second scenario is
that the Plaintiff would have opted to search for
employment at a public health facility, however, given that she was
employed
in the private sector prior to the accident it is unlikely
that she would have moved from the private to the public sector.
[20]
Having regard to the accident, Mr Moodie
opined that the Plaintiff will most probably opt to work in the
nursing sector which does
not require physical demands like working
with patients and she will probably have to re-align herself to
obtain sedentary work
as quickly as possible.
[21]
However, during cross examination Mr Moodie
conceded that given the Plaintiff’s residual work capacity she
will be able to
work as a medical receptionist earning income in her
injured state which is higher than that initially postulated by Mr
Moodie
in his expert report.
[22]
Mr Moodie’s concession gave rise to
the postulated amended actuarial calculations.
[23]
As mentioned, the actuary calculated five
different scenarios. The post- accident scenario of all five the
calculations are identical,
save for contingencies to be applied, and
is based on the concession made by Mr Moodie.
[24]
The material difference between the
pre-accident calculation of scenario 1 versus scenario 2 is that
scenario 2 projects that the
Plaintiff’s income would increase
linear until the age of 47.5 years, when she would have reached her
career ceiling equal
to the median of Paterson level C3/C4,
whereas scenario 1 did not provide for
projected salary increases.
[25]
Scenario’s 3 to 5 is premised on
scenario 2 but with different contingency permutations.
[26]
So the question is: But for the accident,
would the Plaintiff, on a balance of probabilities, have progressed
to Paterson level
C3/C4 or, put differently, would she have reached
the level of Unit Manager.
[27]
The question was put to Mr Moodie during
cross examination and he opined that the Plaintiff would have
progressed to the level of
Unit Manager. He
inter
alia
based his opinion on the fact that
the Plaintiff, before the accident, was recruited by the private
sector and she is an individual
with competency and ambition. It must
also be remembered that the Plaintiff testified that she was already
in charge of one staff
nurse and two assistant nurses whilst in the
employ of Medi Clinic.
[28]
The RAF did not offer any evidence to
dispute Mr Moodie’s opinion and it follows that it is more
probable that not, had the
accident not occurred, that the Plaintiff
would have progressed to Paterson level C3/C4.
[29]
The only remaining issue is the
contingencies to be applied. It is now well- settled that
contingencies, whether negative or positive,
are an important control
mechanism to adjust the loss suffered to the circumstances of the
individual case in order to achieve
equity and fairness to the
parties.
[30]
Therefore, both favourable and adverse
contingencies must be taken into account, as stated in
Southern
Insurance Association v Bailey N.O.
1984 (1) SA 98
(A) at 117C-D:
The generalisation
that there must be a 'scaling down' for contingencies seems mistaken.
All 'contingencies' are not adverse and
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.
[31]
There
is
no
hard
and
fast
rule
regarding
contingency
allowances.
See
Koch,
The Quantum Yearbook
(2011)
at 104 where the following is stated:
"General
contingencies cover a wide range of considerations which may vary
from case to case and may include: taxation, early
death, saved
travel costs, loss of employment, promotion prospects, divorce, etc.
There are no fixed rules as regards general contingencies.
[32]
In
Oosthuizen
v Road Accident Fund
2015
JDR 1717 (GJ) Wentzel AJ gave a useful summary of the various case
law applicable to the application of contingencies and emphasise
that:
[14]
Matters which cannot otherwise be
provided for or cannot be calculated exactly, but which may impact
upon the damages claimed, are
considered to be contingencies, and are
usually provided for by deducting a stated percentage of the amount
or specific claims.
(
De Jongh v
Gunter
1975(4) SA 78 (W) 80F).
[15]
Contingencies include any possible
relevant future event which might cause damage or a part thereof or
which may otherwise influence
the extent of the plaintiff's damage.
(
Erdmann v SANTAM Insurance Co
Ltd
1985 3 SA 402
(C) 404-405;
B
urns v
National Employers General
Insurance Co Ltd
1988 3 SA 355
(C) 365).
[16]
In a wide sense contingencies are
described as "the hazards that normally beset the lives and
circumstances of ordinary people".
(
AA
Mutual Insurance Association Ltd
v Van Jaarsveld
1974 4 SA 729
(A);
Van der Plaats
v SA Mutual Fire & General
Insurance
Co
Ltd
1980
3
SA
105
(A);
Southern
Insurance
Association
Ltd
v
Bailey
1984 1 SA 98
(A) 117). Contingencies have also been described as
"unforeseen circumstances of life". (
De
Jongh v Gunther
1975 (4) SA 78
(W) 80F).
[17]
The percentage of the contingency
deduction depends upon a number of factors and ranges between 5% and
50%, depending upon the facts
of the case. (
AA
Mutual
Association
Ltd v Maqula
1978(1) SA 805 (A)
812;
De Jongh v Gunther
1975(4) SA 78 (W) 81, 83, 84D;
Goodall
v President
1978(1) SA 389 (W)
393;
Van der Plaats v SA
Mutual Fire & General
Insurance Co Ltd
1980(3) SA
105(A) 114-115A-D).
[18]
Contingencies are usually taken into
account over a particular period of time, generally until the
retirement age of the plaintiff
(
Goodal
v President
Insurance
Co
Ltd
1978 1 SA 389
(W) 393;
Rij
NO v Employers' Liability Assurance
1964 (4) SA 737
(W);
Sigournay v
Gillbanks
1960 2 SA 552
(A) 569;
Smith v SA Eagle Insurance Co
Ltd
1986 2 SA 314
(SE) 319).
[19]
Often, what is described as a
"sliding scale" is used, under which it is allocated a
"1/2% for year to retirement
age, i.e 25% for a child, 20% for a
youth and 10% in middle age". (
Goodall
v President Insurance Company Limited
1978(1)
SA 398(W) and
Road
Accident Fund v Guedes
2006(5) SA 583(A) 588D-C. Likewise, see
Nonwali
v Road
Accident
Fund
(771/2004) [2009] ZAECMHC 5
(21 May 2009) (para 23))
…
[21] …The
advantage of applying actuarial calculations to assist in this task
was emphasised in the leading case of
Southern Insurance
Association Ltd v Bailey
1984 1 SA 98
(A) 113H-114E, where the
Court stated:
Any enquiry into
damages for loss of earning capacity is of its nature speculative
…
..
All that the Court can
do is to make an estimate, which is often a very rough estimate, of
the present value of the loss. It has
open to it two possible
approaches. One is for the Judge to make a round estimate of an
amount which seems to him to be fair and
reasonable. That is entirely
a matter of guesswork, a blind plunge into the unknown. The other is
to try to make an assessment,
by way of mathematical calculations, on
the basis of assumptions resting on the evidence. The validity of
this approach depends
of course upon the soundness of the
assumptions, and these may vary from the strongly probable to the
speculative. It is manifest
that either approach involves guesswork
to a greater or lesser extent. But the Court cannot for this reason
adopt a non possumus
attitude and make no award.
……
..
In a case where the
Court has before it material on which an actuarial calculation can
usefully be made, I do not think that the
first approach offers any
advantage over the second. On the contrary, while the result of an
actuarial computation may be no more
than an 'informed guess' it has
the advantage of an attempt to ascertain the value of what was lost
on a logical basis; whereas
the trial Judge's 'gut feeling' (to use
the words of appellant's counsel) as to what is fair and reasonable
is nothing more than
a blind guess."
[23]
But the Court emphasised that
provision for contingencies falls squarely within the subjective
discretion of the court as to what
is reasonable and fair. This will
depend upon the underlying assumptions made which are not the domain
of the actuary. (
Shield
Insurance Co Ltd v Hall
1976 4 SA 431
(A) 444;
Pringle v
Administrator, Tvl
1990 2 SA 379
(W) 397-398).
[24]
The
Appellate
Division
has
stressed
in
Legal
Insurance
Company
Ltd
v
Botes
1963(1) SA 608(A) 614F-G that:
In assessing the
compensation the trial judge has a large discretion to award what
under the circumstances he considers right. He
may be guided but is
certainly not tied down by inexorable actuarial calculations.
[33]
Mr Marx who appeared for the Plaintiff
contended for a contingency deduction of 5% to accrued (past) loss
and 15% to prospective
(future) loss in the uninjured scenario and 5%
to accrued (past) loss and 35% to prospective (future) loss in the
injured scenario.
[34]
I am mindful that the prognosis of the
Plaintiff’s orthopaedic injuries are not good and that she will
have to undergo replacement
surgery within ten to fifteen years of
both her elbow and knee joints but I also recognised that the injured
scenario provides
for seven and a half years early retirement and
that the calculation is based on the premises that the Plaintiff will
be employed
in a sedentary environment. To apply a contingency
deduction as high as 35% to the prospective future injured scenario,
where early
retirement is already foreseen would not be reasonable
and fair to the RAF. I am of the view that a contingency deduction of
20
% should be applied
to
the future injured scenario.
[35]
Accordingly the Plaintiff suffered a loss
of income of R 7 630 280,00, as calculated by Mr Sauer in terms of
actuarial scenario
3.
[36]
Lastly, the issue of costs. Mr Marx
contended for a special cost order on the basis that the RAF did not
present any evidence and
according to him Mrs Bornman, who appeared
for the RAF, had an obligation not only to her client but also to
court, when taking
instructions, to assist the court and to make
concessions when concessions ought to be made. He further argued that
it happens
frequently in RAF cases that a case is being attacked on
undisputed evidence and, according to him, an argument cannot trump
undisputed
evidence.
[37]
I don’t know why the RAF did not
present any evidence but it would appear that Mr Marx lost sight of
the fact that Mrs Bornman,
on the instructions of the RAF, conceded
various expert reports, after having heard the evidence she agreed to
the various actuarial
postulations which saved costs and court time
and, most importantly, the concession she elicited during the cross
examination of
Mr Moodie reduced the Plaintiff’s claim from
more than R 9,2 million to R 7.6 million.
[38]
Mr Marx’s criticism of Mrs Bornman’s
conduct is both unnecessary and unfounded. There is thus no basis for
a cost order
on a punitive scale.
Order
[39]
I make the following order.
1.
The Defendant is liable for payment to the
Plaintiff in the amount of R 7 630 280,00 (“the capital
amount”) in respect
of the Plaintiff’s claim for past and
future loss of earning capacity from a motor vehicle collision that
occurred on 21
October 2016.
2.
The Defendant is liable to pay the
Plaintiff's taxed or agreed party and party costs on the High Court
scale, including but not
limited to the costs set out hereunder:
2.1
The reasonable preparation / qualifying and
reservation fees (if any) of the following experts:
2.1.1
Dr LF Oelofse and Dr MB Deacon (Orthopaedic
surgeons);
2.1.2
Dr H.P. Kloppers, (maxillo-facial and oral
surgeon)
2.1.3
Dr D. Hoffmann (plastic, reconstructive and
cosmetic surgeon)
2.1.4
Mrs L Grootboom (clinical psychologist)
2.1.5
Mrs A Gouws of Rita van Biljon
(occupational therapists);
2.1.6
Mr B Moodie (industrial psychologist);
2.1.7
Mr
J
Sauer
of
Johan
Sauer
Actuaries
and
Consultants Actuaries.
2.2.
The payment provisions in respect of the
aforegoing are ordered as follows:
2.2.1
Payment of the capital amount shall be made
without set- off or deduction, within 180 (hundred and eighty)
calendar days from date
of the granting of this order; and
2.2.2
Payment of the taxed or agreed costs shall
be made within 180 (hundred and eighty) days of taxation,
3.
Interest shall accrue at 7,25% (the
statutory rate per annum), compounded, in respect of:
3.1
The capital of the claim, calculated from
14 (fourteen) days from date of this order.
3.2
The taxed or agreed costs, calculated from
14 (fourteen) days from date of taxation, alternatively date of
settlement of such costs.
PJJ
ZIETSMAN AJ
Counsel
for the Plaintiff
Adv
Marx
Instructed
by:
VZLR
Attorneys
Counsel
for the Defendant
Mrs
Bornman
Instructed
by:
The
State Attorney
[1]
The
merits of the Plaintiff’s claim were conceded by the RAF.
[2]
Dr
Oelofse assessed the Plaintiff on 26 March 2020.