About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 30
|
|
Gwarube v Road Accident Fund (1439/2017) [2023] ZAECELLC 30 (10 October 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT
CASE
NO: 1439/2017
ECD
4039/2017
REPORTABLE:
OF
INTEREST TO OTHER JUDGES:
REVISED:
In
the matter between:
MALAKHIWE
GWARUBE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BOTHA
AJ:
[1]
This is an action for damages in terms of the Road Accident
Fund Act
56 of 1996 (‘Act 56 of 1996’).
[2]
It proceeded on a default judgment basis, following dismissal
of the
Defendant’s defence on 25 January 2023.
[3]
Ms Malakhiwe Gwarube (the ‘Plaintiff’) sustained
bodily
injuries from a motor vehicle collision which occurred on 16 August
2015. The Plaintiff was 18 years old at the time and
a passenger in
the insured vehicle.
[4]
Following the collision, the Plaintiff lost consciousness
briefly and
was taken by ambulance to Life St Dominic’s Hospital in East
London. She regained consciousness in the ambulance
and was
hospitalised in intensive care for a few days, followed by a week in
a general ward. She spent 10 days in hospital in total.
[5]
The Plaintiff suffered
a fracture of the
left humerus, multiple facial and left foot lacerations, bruising and
a mild head injury to the left side of her
face, which resulted in a
small keloid scar on her lower lip. She underwent various procedures
to treat her injuries, including
an internal fixation of the
fractured humerus.
[6]
The Road Accident Fund (the ‘Defendant’)
conceded
liability for 100 per cent of the Plaintiff’s proved damages.
The Defendant offered to pay an amount of R350 000
(Three
Hundred and Fifty Thousand Rand) in respect of general damages, which
amount was accepted by the Plaintiff. The Defendant
also agreed to
provide the Plaintiff with an undertaking in terms of s 17(4)(a)
of Act 56 of 1996, which undertaking was accepted.
[7]
The only outstanding issue is loss of earnings.
Expert
reports
[8]
For the claim for loss of earnings, the Plaintiff relied
on the
following expert reports, namely: Dr K.A. Watt (Orthopaedic Surgeon);
Ms V. Ruiters (Occupational Therapist); Dr A.B. Mazwi
(Neurosurgeon);
Ms M Mphelo (Clinical Psychologist); Ms M. Kheswa (Industrial
Psychologist); and Munro Forensic Actuaries.
[9]
The Defendant produced only three expert reports
namely: Ms N.C. Magakwe (
Occupational Therapist), Ms H Tomu
(Industrial Psychologist), and Mr Grant Pretorius (actuary), but
because the Defendant’s
defence was dismissed, the Defendant
presented no evidence.
[10]
Nonetheless, the industrial psychologists and occupational therapists
met before
the trial and filed joint minutes.
[11]
The physical injuries suffered by the Plaintiff are common cause.
However,
the Defendant disputed the
sequelae
of the head
injury sustained by the Plaintiff and her capacity to be employed in
the future, as is gleaned from the various experts
reports and the
joint minutes of the industrial psychologists and occupational
therapists. I shall refer again to the disagreements
between these
experts when I record the evidence of the experts called for the
Plaintiff.
[12]
The Orthopaedic Surgeon, Dr Watt, was not called to give evidence,
but his
report indicates that, as at 2017, the Plaintiff had made a
good recovery from her shoulder injury, apart from a decreased range
of movement of ten degrees in her left shoulder as compared to her
right shoulder. The Plaintiff also still suffered from minor
pain and
discomfort in her left shoulder at the extremes of movement and had a
slight weakness of the left shoulder – a
sequelae
with
which both parties agreed. As to her future prognosis, Dr Watt
reported that apart from playing water polo (in which the Plaintiff
participated before the injury), all other activities should be
satisfactorily continued without any real discomfort, except at
the
extremes of movement.
[13]
Dr Watt added that the Plaintiff appeared to have recovered fully
from her
head injury, apart from the scar which is still visible.
[14]
The Defendant has not produced any report or evidence to refute the
claims
of Dr Watt.
Plaintiff’s
evidence
[15]
Five witnesses testified for the Plaintiff: the
Plaintiff herself, Ms V. Ruiters, the Occupational Therapist,
Dr
A.B. Mazwi, the Neurosurgeon; Ms M. Mphelo, the Clinical
Psychologist; Ms M. Kheswa, the Industrial Psychologist; and Ms J.
Valentini, an actuary at Munro Forensic Actuaries.
The
Plaintiff
[16]
The Plaintiff testified first. She is an adult female, born on 10
September
1996. She resides in Beacon Bay, East London. At the time
of the accident, in August 2015, the Plaintiff was 18 years old. When
she presented her evidence, she was 26 years old.
[17]
At the time of the accident, the Plaintiff was a student studying
civil engineering
at Buffalo City College (a TVET vocational
college), having completed grade 10 in 2008. She aimed to become an
Artisan (Civil Engineering).
[18]
Following the accident, the shoulder operation and her stint in
hospital, the
Plaintiff returned home to live with her parents to
recover. She stayed there for three months, whilst her parents cared
for her,
but because of her injuries, she was unable to write her
examination for the civil engineering course. Her injured shoulder
also
impeded her from completing the practical work that was
required. As a consequence, she did not complete the course.
[19]
In 2018, the Plaintiff successfully completed a project management
course.
However, since then she has not studied further and nor is
she employed, despite having worked on two occasions as a
data-capturer
and as a mobile money agent between the date of the
accident and the date of the trial.
[20]
In response to a question posed by me as to the reason for not
studying further,
she indicated that she had not ‘found the
need’ to continue with her studies or to take up employment. No
explanation
was given for this statement, nor was it explored any
further by Plaintiff’s counsel, which was most unfortunate,
given the
facts mentioned in par [19] above.
[21]
As indicated below, however, the evidence of Ms Mphelo, Ms Ruiters
and Ms Kheswa
provides some contextual basis to ameliorate the effect
of this statement.
[22]
The Plaintiff is not married and still lives at home.
Dr
Mazwi – Neurosurgeon
[23]
The second witness called for the Plaintiff was Dr Mazwi, a
Specialist Neurosurgeon,
practising in Pretoria.
[24]
Whilst the expert report filed on behalf of Dr Mazwi did not qualify
him as
an expert, oral evidence was led as to his qualifications and
experience, which I accepted.
[25]
Dr Mazwi completed his MBChB from MEDUNSA in 2003 and then qualified
with a
Masters’ degree in Neurosurgery from the University of
Pretoria in 2013. In 2015 he successfully completed an independent
examination from ABIME in the USA. He has been a registered
Specialist Neurosurgeon with the Health Professional Council of South
Africa for 9 years and is employed as a Specialist Neurosurgeon at
Steve Biko Academic Hospital, linked to the University of Pretoria,
and at the Muelmed Mediclinic in Pretoria.
[26]
Dr Mazwi first assessed the Plaintiff on 25 January 2019, almost four
years
after the accident. He then prepared an expert report, which,
as I pointed out in court, contained scant detail about the testing
conducted and how these tests linked to the conclusions reached. This
was most unfortunate.
[27]
In his evidence, Dr Mazwi endeavoured to expand upon the findings in
his report,
focusing on the Plaintiff’s cognitive functioning.
[28]
He testified that he confirmed the injuries sustained by the
Plaintiff as contained
in the hospital reports. During the assessment
in 2019, the Plaintiff narrated to Dr Mazwi that she was suffering
from the following
symptoms: difficulty concentrating, memory
disturbances, poor focus, headaches and behaviour disturbances, plus
a short temper.
[29]
Prior to the accident, the Plaintiff was: healthy, had no prior
neurological
or mental illnesses or head injuries, performed at a
‘normal’ level scholastically and was mentally sound. She
was
also born with no congenital abnormalities.
[30]
Dr Mazwi’s neurological examination of the Plaintiff, which
included
a ‘Mini Mental Status Exam’ revealed that the
Plaintiff struggled to concentrate, had poor attention, and had
difficulty
with memory recall.
[31]
Whilst not contained in his expert report, Dr Mazwi testified that
the Exam
conducted involved the Plaintiff having to recall recent
events (such as one’s breakfast that morning) and to memorise
and
repeat a list of objects which Dr Mazwi called out.
[32]
Dr Mazwi testified that the Plaintiff had difficulties with the
recall of recent
events, including a discussion which he had had with
her at the beginning of the consultation, and that she also struggled
to remember
the list of objects after they were called out to her.
The conclusion that Dr Mazwi reached was that this pointed to
significant
problems with concentration, memory and recall.
[33]
The physical tests conducted by Dr Mazwi, however, did not show any
neuro-physical
damage. The Plaintiff’s cranial nerves were also
intact according to an x-ray taken after the accident. Apart from the
impact
of the physical injuries sustained during the accident (to her
shoulder and the scarring to her face), the Plaintiff presented as
being physically able and her injuries did not impact on her life
expectancy. However, as I explain below, Dr Mazwi’s concluded
that the Plaintiff’s head injury resulted in neuropsychological
damage, causing cognitive and behavioural disturbances, including
memory loss, headaches, and poor concentration and focus.
[34]
The impact of the Plaintiff’s head injury, which Dr Mazwi
classified
as mild (class 1), was assessed according to the American
Academy of Neurology grading, the Glasgow Coma Scale and the American
Congress of Rehabilitation Medicine Definitions. A mild head injury
includes concussion and amnesia which lasts for less than a
day.
According to Dr Mazwi, for mild head injuries, the alteration in
one’s mental status would be between 5 to 12 per cent.
In the
Plaintiff’s case, according to the examination conducted by Dr
Mazwi, the impairment was 7 per cent (i.e. at the mid
of the scale
for a mild head injury). This was evidenced by the report of
persistent headaches (even four years after the accident)
and the
Plaintiff’s poor memory recall.
[35]
Approximately 15 per cent of patients with mild head injuries present
with
cognitive disturbances. According to Dr Mazwi, the Plaintiff
fell within this range.
[36]
Dr Mazwi concluded that the Plaintiff sustained a mild head injury,
with long
term mental disturbance, which would impact on her ability
to study and work. This was evidenced by the fact that she still
suffered
from cognitive disturbances four years after the accident.
Most patients with mild head injuries should recover fully within 12
months after the accident.
[37]
Dr Mazwi therefore referred her to a neuropsychologist for further
assessment
to determine the Plaintiff’s long term mental
disturbance and her ability to work post-accident.
Ms
Metse M. Mphelo - Clinical Psychologist
[38]
Similarly to the expert report filed on behalf of Dr Mazwi, the
report filed
on behalf of Ms Mphelo also did not qualify her as an
expert. Her curriculum vitae was handed in and then oral evidence was
led
as to her qualifications and experience, which I accepted.
[39]
Significantly, Ms Mphelo has worked and trained as both a clinical
and an industrial
psychologist. Ms Mphelo explained that the
difference between the two is that a clinical psychologist is trained
to assess the
impact of a patient’s injuries on his or her
psychological functioning, whilst an industrial psychologist works in
industry
and would be required to assess issues such as employee
recruitment and an employee’s capacity to fulfil a specific
job’s
requirements.
[40]
Unlike Dr Mazwi’s report, however, Ms Mphelo’s report was
detailed.
Both her report and evidence provided useful insight into
the Plaintiff’s cognitive functioning.
[41]
Following Dr Mazwi’s recommendation that the Plaintiff be
referred to
a psychologist for assessment, Ms Mphelo examined the
Plaintiff in August 2022.
[42]
Ms Mphelo confirmed: the Plaintiff’s injuries, that prior to
the accident:
the Plaintiff’s medical history was uneventful;
she had never experienced any trauma or neurological illness; and
there was
no genetic history of medical disorders in the family.
[43]
Ms Mphelo also confirmed the Plaintiff’s biographical details,
as contained
in her expert report, and that prior to the accident the
Plaintiff: had passed grade 10 (although she had to repeat grade 8);
had
passed level 2 of a Civil Engineering course at Buffalo City
College; had failed to complete level 3 of the same course because
of
the trauma (both physical and psychological) caused by the accident;
and had completed a project management certificate (a short
course,
unlinked to the building industry at NQF level 5) at the East London
Management Institute in 2018.
[44]
At the time of the assessment, the Plaintiff was unemployed.
[45]
Prior to the accident, the Plaintiff was healthy, active, mentally
stable and
physically strong.
[46]
Ms Mphelo confirmed that the Plaintiff reported daily headaches, pain
in her
left shoulder, sleeping disturbances, and numerous cognitive
challenges, including memory loss, forgetfulness, and maintaining
focus. She also reported emotional and behavioural changes, such as
irritability, impatience, a short temper, extreme anxiety when
travelling in a motor vehicle and a general feeling of devastation
resulting from the impact of the accident, including thoughts
of
killing herself (although the Plaintiff has said that she would not
actually carry these out).
[47]
Ms Mphelo conducted many psychometric tests with a focus on
identifying and
assessing the cognitive challenges the Plaintiff
reported. The purpose of these tests was to determine the impact of
the minor
head injury on the Plaintiff’s intellectual
functioning.
[48]
The ‘comprehension’ and ‘similarities’ tests
revealed
that the Plaintiff had retained her reasoning, judging and
abstract concept formation abilities. Her result for both tests was
in the average range.
[49]
The result for the ‘memory for digits’ test, however, was
below
average. This test assesses short-term memory and concentration
and is a very useful test for measuring cognitive ability. The test
result revealed an inadequate ability to concentrate and focus
attention, which aligned with the symptoms reported by the Plaintiff.
[50]
The next test used was the Bender Gestalt Test, which measures
inter
alia
perceptual motor functioning, visual perceptual skills, and
planning and organisation skills. This test helps to determine
whether
there has been any neuro-physical or cranial nerve damage.
There was no evidence of neurocognitive impairment, which according
to Ms Mphelo, aligned with Dr Mazwi’s diagnosis.
[51]
The next test assessed the Plaintiff’s visual spatial
functioning, focusing
on memory and concentration. The Plaintiff’s
result was below average, which indicated challenges with attention
span, concentration
and short-term working memory.
[52]
Thereafter, Ms Mphelo tested the Plaintiff’s emotional
functioning post
the trauma of the accident. All three of the tests
conducted revealed that the Plaintiff had suffered significant
post-traumatic
stress as a result of the accident, impacting on her
coping skills, and leaving her moderately depressed, emotionally
immature
and vulnerable.
[53]
These findings correlated with Dr Mazwi’s findings.
[54]
Ms Mphelo then proceeded to explain the impact of the findings of the
test
results on the Plaintiff’s post-accident functioning. The
main physical impact was headaches, dizziness and shoulder pain.
The
neurocognitive areas which have suffered the most are her attention
span, her ability to focus and concentrate and her working
short-term
memory. Whilst the Plaintiff’s intellectual abilities remain
within the so-called average range, because of the
neurocognitive
impairment, according to Ms Mphelo, the Plaintiff will struggle in
the future to acquire new knowledge and to cope
with learning. As Ms
Mphelo explained, ‘memory is an engine for learning’ and
if one’s memory is impaired, the
ability to study or work
competently would be severely constrained. This consequence is
exacerbated by the fact that the Plaintiff
is also still struggling
with post-traumatic stress disorder, depression and emotional
disturbances.
[55]
According to Ms Mphelo, this state of affairs could explain the
Plaintiff’s
comment that she did not see the need to study
further or to find employment.
[56]
In Ms Mphelo’s opinion, the
sequelae
to the head injury
will impact negatively on her ability to study further, to compete
fairly in the open labour market, her productivity
at work, and to
cope with the stress of employment. It is highly unlikely that she is
capable of either finding a job or becoming
a competent employee.
[57]
Significantly, however, Ms Mphelo did recommend that the Plaintiff
needed psychotherapy
to assist her to cope with her depression,
post-traumatic stress symptoms and behavioural problems, all of which
impacted on her
daily life, and her general well-being. There is no
evidence that the Plaintiff has undergone therapy.
[58]
Ms Mphelo also recommended that the Plaintiff be assessed by an
educational
psychologist, but no report of this nature has been
filed.
[59]
Ms Mphelo’s evidence was clear, well-presented and assisted the
court.
She impressed me immensely.
Ms
V. Ruiters – Occupational Therapist
[60]
Like the other expert reports filed, Ms Ruiters’ report also
did not
qualify her as an expert. Her
curriculum vitae
was
handed in and oral evidence was then led as to her qualifications and
experience, which I accepted.
[61]
Ms Ruiters assessed the Plaintiff in July 2018. At the time the
Plaintiff was
21 years old. She drove herself to the assessment.
[62]
Ms Ruiters provided the court with useful biographical and family
detail. The
Plaintiff’s mother is an educator and her father is
a full-time pastor. She has two siblings. The Plaintiff’s
eldest
sibling, Siviwe, has a law degree and works in Cape Town. Her
younger sister, Sibulele, has a degree in economics and is also
employed.
[63]
At the time of the assessment, the Plaintiff was busy with the
Project Management
course, as referred to earlier, and was
unemployed.
[64]
Ms Ruiters confirmed that the shoulder injury still caused the
Plaintiff pain
and that this impacted on her range of movement and
her ability to engage in tasks which required shoulder strength. She
would
only be able to perform sedentary to “light” work
and would probably need to work reduced hours. The construction /
civil engineering sector would be far too physical for the Plaintiff
to cope.
[65]
The Defendant’s expert occupational therapist agreed with Ms
Ruiters
on the impact of the shoulder injury, as is reflected in both
their expert reports and the joint minute, and so the balance of Ms
Ruiters’ testimony related to the Plaintiff’s cognitive
functioning, especially in the work-environment.
[66]
Ms Ruiters conducted a Cognitive Assessment of Minnesota (CAM) test
to assess
the Plaintiff’s cognitive abilities. The CAM is a
comprehensive one as it tests a wide range of cognitive skills in a
hierarchical
manner, that is from basic cognitive functioning to
higher functioning cognitive skills. The CAM considers various
aspects, ranging
from memory, orientation and attention span, moving
ultimately to concrete problem solving and abstract reasoning.
[67]
It was in the mid-range of activities in the hierarchy test that the
Plaintiff
started struggling. She had difficulties with visual memory
and sequency, recall, and auditory memory and sequency. She scored
very poorly in relation to concrete problem solving and was unable to
comprehend all the assigned abstract reasoning tasks.
[68]
The impact of these results is that: the Plaintiff is unlikely to be
able to
follow instructions effectively, especially when these are
not clearly set out; she is likely to be accused of not listening or
paying attention; she will struggle with complex / multiple digit
maths (with which given her level of education she should experience
no difficulty); and her ability to draw logical conclusions and to
engage in abstract thinking will be severely constrained.
[69]
The next test conducted by Ms Ruiters was the Work Agreement Scenario
Profile
(WASP) test, which screens working ability, and is
specifically designed for the South African context.
[70]
The conclusion reached is that given the cognitive symptoms
displayed, the
Plaintiff would have difficulty functioning as a
project manager as this job requires many skills (attention span,
recall, memory,
co-ordination demands, i.e. between listening and
follow through, and problem solving), all of which the Plaintiff now
lacks.
[71]
Based on these results, Ms Ruiters recommended that the Plaintiff
consult a
neurosurgeon and psychologist and concluded that the
Plaintiff’s working capacity was severely restrained.
[72]
In 2022, and following receipt of the other medical reports, Ms
Ruiters prepared
a supplementary report. She confirmed the content of
this report in her testimony.
[73]
In summary, Ms Ruiters explained that the findings of the other
doctors confirmed
the results of the 2018 tests. In her opinion,
therefore, the Plaintiff presented with reduced physically
functionality and neurocognitive
‘fallouts’ that would
impact on her ability to study and to work. She certainly would not
be able to pursue her original
goals and to qualify as a civil
engineer. Moreover, in order to find employment in the first place
(in a sedentary or light role),
she would need an employer who was
sensitive to her disabilities. Assuming she was able to secure such
employment, she would be
unlikely to sustain long-term employment
because of her concentration and memory difficulties, which would
impact on her performance
and her relationship with colleagues. The
Plaintiff would thus always remain at risk of loss of employment and
would be very vulnerable
in the open labour market.
[74]
The Defendant’s expert occupational therapist agreed with these
findings,
as is reflected in the Joint Minute dated May 2022.
Ms
Moipone Kheswa - Industrial Psychologist
[75]
Ms Kheswa’s expert report did not qualify her as an expert, but
her
curriculum vitae
was handed in and evidence was led as to
her expertise as an industrial psychologist, which I accepted.
[76]
Ms Kheswa first assessed the Plaintiff in April 2019 and then again
in September
2022.
[77]
Whilst Ms Kheswa’s testimony focused specifically on the areas
where
she and the Defendant’s exert industrial psychologist
differed, Ms Kheswa provided valuable information about the
Plaintiff’s
academic journey both before and after the accident
and her family history.
[78]
The Plaintiff left school in 2013 with a Grade 10
qualification. She then registered for a Civil Engineering
Certificate at a TVET
college (offering vocational studies). She
passed Level 02, but because of the accident, she failed to complete
Level 03 and Level
04 of the course, with the latter being the
equivalent of grade 12.
[79]
Had the Plaintiff completed the Civil Engineering
Certificate, her plan was to register for a N6 Certificate in Civil
Engineering
which is required to become a qualified Artisan, Civil
Engineering.
[80]
Ms Kheswa confirmed that the Plaintiff had
completed a Project Management Course and that she also worked as a
Data Capturer for
the Department of Education from March to September
2016, earning R5 000.00 per month. After her fixed term
contract
expired, it was not renewed. Later, from July to December
2019, the Plaintiff again worked, this time as a money mobile agent,
earning R4 500 per month. As I indicate below, however, Ms
Kheswa later testified that the Plaintiff had struggled with the
course and the work she did because of her neuro-cognitive
functioning.
[81]
It is Ms
Kheswa’s opinion that had the
Plaintiff not been injured in the accident, she would have completed
her studies and qualified
as an Artisan Civil Engineer. This opinion
was based on the Plaintiff’s scholastic record, her own
narrative about her vocational
plans, her inclination towards a
technical career path / environment, and the fact that her home life
was cognitively stimulating,
with education playing a prominent role.
To illustrate, both the Plaintiff’s parents have Honours
degrees and her sisters
have completed degrees (one in Law at an LLM
level and the other in Economics).
[82]
Artisan civil engineers are in demand in
South Africa and the Plaintiff would not have struggled to find
gainful employment. Initially
she would have entered the labour
market on the lower quartile earnings at Paterson level B4,
progressing to the median quartile
of level C3 or 4 when she reached
the age of 45. At age 50 she would probably have reached the upper
quartile band for Paterson
level C4/C5. She would probably have
retired at age 65.
[83]
The joint minute filed by the parties
reflects that the Defendant’s expert industrial psychologist
agreed with Ms Kheswa’s
projections.
[84]
But, as Ms Kheswa testified, the experts disagreed about the
Plaintiff’s
employment prospects post the accident. According
to the Defendant’s expert, the Plaintiff would have moved to a
“lighter
career” and would probably have been able to
work as a skilled employee in the corporate section.
[85]
Ms Kheswa disagreed with this opinion. She explained that given the
nature
of the cognitive difficulties that the Plaintiff experiences
as a result of the injury, it would be highly unlikely that she would
be able to sustain employment, even an office environment, where the
work is not physical in nature. The reality is that without
good
memory, recall and concentration a person is unemployable.
[86]
Even if the Plaintiff were to try and conceal her difficulties or if
she were
to find work with a sensitive employer (which is nigh
impossible in the current economy and business environment), the
Plaintiff
would have been unable to perform at a level which would
sustain employment.
[87]
Should the Plaintiff find employment, but then
lose her job, she would find it difficult to secure and sustain
similar employment
elsewhere, given her medical history, cognitive
and psychological difficulties and the resulting impact on her
performance and
efficiency,
[88]
Following this testimony, I asked Ms Kheswa to comment on the
relevance of
the fact that the Plaintiff had been employed as a
data-capturer for the Department of Education for a fixed term. Ms
Kheswa response
was that the Plaintiff told her that she had secured
this job through her mother’s contacts, but that the contract
was not
renewed because she made many mistakes during her tenure,
which was very distressing. Also, the Plaintiff told Ms Kheswa that
she
only managed to complete the project management course with the
assistance of her family, who helped her to complete assessments.
[89]
According to Ms Kheswa, this narrative is
consistent with her findings and opinion, namely that the Plaintiff
is not cognitively
equipped to find employment. As Ms Kheswa noted,
the other experts called on behalf of the Plaintiff all agree that
the mild head
injury has impacted severely on the Plaintiff’s
cognitive functioning.
[90]
Ms Kheswa did not comment, however, on
whether psychotherapy as recommended by the clinical psychologist
would assist the Plaintiff
to overcome some of the cognitive issues
she currently faced.
Ms Julie Valentini –
Actuary
[91]
Plaintiff’s Counsel explained that the
original actuary from Munro Forensic Actuaries, Mr Willem Boshoff,
was not available
to give evidence on the day of the trial, because
of a personal family commitment, which reason I accepted. However, a
second and
updated actuarial report, dated 26 January 2023, had been
prepared by both Mr Boshoff and Ms Julie Valentini and Ms Valentini
had
filed an affidavit and was also available to testify via Zoom.
[92]
I accepted Ms Valentini’s affidavit and Counsel for the
Plaintiff’s
closed the Plaintiff’s case, praying for
damages for loss of earnings in the sum R5 520 800.00, as
per the Amended
Particulars of Claim and the original actuarial
report. When I pointed out that Ms Valentini had since calculated the
Plaintiff’s
loss of earnings to be R9 438 400, which
was far in excess of the original calculated loss and the amount
claimed for
loss of earnings, Counsel elected to re-open the
Plaintiff’s case to enable Ms Valentini to testify to explain
the increased
claim and / or to enable the Plaintiff’s legal
team to apply for an amendment of the Plaintiff’s Particulars
of Claim
to reflect the claim for loss of earnings accurately.
[93]
Unfortunately, given the vexed relationship between technology and
the strain
of loadshedding, evidence via Zoom could not proceed on
the day. The matter was then postponed to a later date to enable Ms
Valentini
to testify.
[94]
When the trial resumed, Ms Valentini presented evidence via Zoom. Her
qualifications
as an actuary were accepted.
[95]
Ms Valentini testified that she was instructed to calculate the
capital value
of the potential loss of earnings, both past and
future, suffered by the Plaintiff as a result of the accident.
Figures were calculated
as at 1 February 2023.
[96]
Using the report of the Plaintiff’s industrial psychologist, Ms
Kheswa,
and the other experts, Ms Valentini testified that she worked
on the assumption that the Plaintiff would be unemployable in the
future as a result of the accident.
[97]
Ms Valentini estimated that the Plaintiff would have entered the
labour market
in January 2019 as an intern after having completed her
courses. She would have worked as an intern for a year, and would
have
commenced employment as an artisan civil engineer in January
2020. As testified by Ms Kheshwa, the industrial psychologist, the
Plaintiff would
have entered the labour market on
the lower quartile earnings at Paterson level B4 (for the intern year
at 50per cent of this scale),
progressing to the median quartile of
level C3 or 4 when she reached the age of 45. At age 50 she would
probably have reached the
upper quartile band for Paterson level C4 /
C5.
Annual inflationary increases would apply thereafter until
retirement at age 65.
[98]
Ms Valentini noted, however, that the industrial psychologist’s
report
used
The Quantum Yearbook 2019
by Dr R J Koch to reflect the Plaintiff’s
projected earnings. Ms Valentini’s second report updated these
figures using
The Quantum Yearbook 2022
by the same author.
[99]
In Ms Valentini’s view, but for the accident, the Plaintiff’s
uninjured
earnings from the date of the accident to the date of the
trial, that is her past loss of earnings, would have been R868 000.
With the application of a standard 5 per cent contingency, this
figure was reduced to R824 600.
[100]
From this amount, the Plantiff’s injured earnings of R62 000,
had to be deducted. The Plaintiff’s
past loss of earnings
therefore amounted to R762 600.
[101]
The actuarial calculation for the Plaintiff’s future
loss of earnings (from the date of trial until retirement at age 65),
being the anticipated capital value of the Plaintiff’s earnings
had she been able to work, was calculated as R11 342 100.
To this, the actuary applied the so-
called
standard 15 per cent contingency to reduce the Plaintiff’s
future loss of earnings to R9 640 785. According
to Ms
Valentini, the 15 per cent contingency which she applied took
into account the usual
factors
that would influence the Plaintiff’s earning capacity,
including her health and life expectancy.
[102]
The combined past and future loss of
earnings amounted to R10 403 385.
[103]
As
Ms Valentini correctly pointed out, the claim, as formulated, fell
within the ambit of the RAF Cap, as introduced by
section 17(4)(c)
of
the
Road
Accident Fund Amendment Act 19 of 2005
. Contingencies must, however,
be deducted before the cap and, for this reason, the claim had to be
reduced by 9.28 per cent.
[1]
[104]
The
result is that the Plaintiff’s amended claim for loss of
earnings was assessed at R9 438 400.
[105]
The Plaintiff then closed her case.
Employability
[106]
All the experts who presented evidence
agree that the Plaintiff will not be able to complete her Civil
Engineering certificate and
will not be able to sustain employment,
even in a sedentary career, because of the
sequelae
of the injuries sustained.
[107]
Whilst
it is unfortunate that none of the experts testified as to the
possible positive impact of psychotherapy to address the impact
of
the mild head injury on the Plaintiff’s cognitive and
behavioural functioning, as recommended by the clinical psychologist,
I am compelled to accept
that
the Plaintiff is unemployable in the open labour market, as concluded
by the experts. The positive impact of such therapy should
however be
considered when assessing the contingency which should apply when
calculating the Plaintiff’s future loss of earnings.
[2]
Nonetheless, as I have said, I accept that the Plaintiff is not
expected to return to work in future, given her physical,
psychological,
and cognitive presentation.
Loss of earnings and
applicable contingencies
[108]
The
approach to determining loss of earnings and applicable
contingencies, was recently lucidly explained by the Supreme Court of
Appeal in
Road
Accident Fund v Kerridge
.
[3]
I have taken the liberty of repeating five consecutive paragraphs
from this judgment given their applicability to this case:
“
[40]
Any claim for future loss of earning capacity requires a comparison
of what a claimant would have earned had the accident not
occurred,
with what a claimant is likely to earn thereafter. The loss is the
difference between the monetary value of the earning
capacity
immediately prior to the injury and immediately thereafter. This can
never be a matter of exact mathematical calculation
and is, of its
nature, a highly speculative inquiry. All the court can do is
make an estimate, which is often a very rough
estimate, of the
present value of the loss.
[41]
Courts have used actuarial calculations in an attempt to estimate the
monetary value of the loss. These calculations are obviously
dependent on the accuracy of the factual information provided by
the various witnesses. In order to address life's unknown
future
hazards, an actuary will usually suggest that a court should
determine the appropriate contingency deduction. Often a claimant,
as
a result of the injury, has to engage in less lucrative employment.
The nature of the risks associated with the two career paths
may
differ widely. It is therefore appropriate to make different
contingency deductions in respect of the pre-morbid and the
post-morbid scenarios. The future loss will therefore be the
shortfall between the two, once the appropriate contingencies have
been applied.
[42]
Contingencies are arbitrary and also highly subjective. It can be
described no better than the oft-quoted passage in
Goodall v
President Insurance Co Ltd
where the court said: 'In
the assessment of a proper allowance for contingencies,
arbitrary considerations
must inevitably play a part, for the
art or science of foretelling the future, so confidently practiced by
ancient prophets and
soothsayers, and by authors of a certain type of
almanack, is not numbered among the qualifications for judicial
office.'
[43]
It is for this reason that a trial court has a wide discretion when
it comes to determining contingencies. An appeal court
will
therefore be slow to interfere with a contingency award of a trial
court and impose its own subjective estimates. …
[44]
Some general rules have been established in regard to contingency
deductions, one being the age of a claimant. The younger
a claimant,
the more time he or she has to fall prey to vicissitudes and
imponderables of life. These are impossible to enumerate
but as
regards future loss of earnings they include, inter alia, a
downturn in the economy leading to reduction in salary,
retrenchment,
unemployment, ill health, death, and the myriad of events that may
occur in one's everyday life. The longer the remaining
working life
of a claimant, the more likely the possibility of an unforeseen event
impacting on the assumed trajectory of his or
her remaining career.
Bearing this in mind, courts have, in a pre-morbid scenario,
generally awarded higher contingencies,
the younger the age of the
claimant. This court, in Guedes, relying on
Koch's Quantum
Yearbook 2004
, found the appropriate pre-morbid contingency
for a young man of 26 years was 20per cent which would decrease on a
sliding scale
as the claimant got older. This, of course,
depends on the specific circumstances of each case but is a
convenient starting
point.”
[109]
As
said earlier, I am satisfied that the evidence has demonstrated that
the
Plaintiff
is unable to work due to the accident and that this situation will
continue for the rest of her life
.
[4]
[110]
The
Plaintiff must, however, prove her actual loss of income.
[5]
The
court requires good evidence to make this determination. There must
be some reasonable basis for arriving at a particular figure.
[111]
In
Goldie v
City Council of Johannesburg
[6]
the court observed that:
‘
[I]n the case
where it is necessary to award compensation for loss of future
earnings, I have difficulty in appreciating what better
starting
point there can be than the present value of the future earnings
which the Plaintiff has been prevented from earning.
From this point
proper allowance must be made for contingencies, but if the
fundamental principle of an award of damages under
lex Aquilia
is compensation for patrimonial loss, then it seems to me that one
must try to ascertain the value of what was lost on some logical
basis and not impulse or by guesswork.’
[107]
Each case
must depends on its own facts and circumstances and the evidence
before the court,
[7]
but as held
in
Hersman
v Shapiro and Company
:
[8]
‘
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is little more than
an estimate; but even so, if it is certain that
pecuniary damage has
been suffered, the Court is bound to award damages.’
[108]
There are some issues with the evidence in this
case. The Plaintiff’s testimony was vague and not very
detailed. Given that
it is her case that she will never be able to
work again, she did not offer a satisfactory explanation for how she
was able to
complete a project management course successfully and
work for two contract periods between the date of the accident and
the date
of the trial. Her statement that ‘she did not see a
need to do so’ (when asked out about future working and study
plans)
concerned me. I would have expected the Plaintiff to explain
for herself that she had memory recall and focus problems and that
the experiences had been both stressful and damaging. I would also
have expected her to testify about whether she is undergoing
therapy
for the cognitive and behavioural challenges that she is facing, but
this evidence was not presented. I shall take these
factors into
account when considering the applicable contingency deduction for the
claim for future loss of earnings.
[109]
Luckily for the Plaintiff, the industrial and
clinical psychologists convinced me that the Plaintiff’s
cognitive functioning
was indeed impaired by the head injury, despite
the apparent successful completion of a certificate course and
employment opportunities
on two occasions.
[110]
I am also, of course, extremely aware of the fact
that the Defendant’s defence was dismissed and that only the
Plaintiff’s
case was presented.
[111]
Nonetheless,
the evidence produced by the Plaintiff is sufficient to establish
that damage has been suffered, and to determine the
amount of
compensation. As set out in
Hersman
‘
if
it is certain that pecuniary damage has been suffered, the Court is
bound to award damages.’
[9]
Contingency
deductions
[112]
The only
issue is that of the contingency deductions which should apply.
Contingencies are the usual hazards that ‘beset the
lives and
circumstances of ordinary people’.
[10]
The principle is that provision must be made for the fact that the
assessed loss may be impacted upon by uncertain events which
occur
independently of the loss caused by the accident,
[11]
such as the possibility of an early death or an illness which
prevents a person from working or a retrenchment. The percentage
of
the contingency deduction depends on numerous factors and can range
from 5 per cent to 50 per cent, depending on the facts of
the
case.
[12]
[113]
However,
from an actuarial perspective five per cent and 15 per cent for past
and future loss, respectively, have become accepted
as ‘normal
contingencies’. The usual considerations include, taxation,
early death, saved travel costs, loss of employment,
promotion
prospects divorce, etc.
[13]
In
this case, the second actuarial assessment, dated January 2023, took
these factors into account.
[114]
Ultimately,
however, the deduction is the prerogative of the court.
[14]
The court must nonetheless do the best it can in the particular
circumstances of the case.
[115]
It is
standard to link contingencies to the age of the Plaintiff. As was
stated by the SCA in
Road
Accident Fund v Kerridge
,
[15]
the younger the plaintiff the more likely it is that he or she may be
the victim of a detrimental life event impacting on the ability
to
work.
[16]
[116]
I
am aware that the fortunes of life are not always negative. For
example, when calculating the future loss of earnings of a young
child, the court should consider that the child may have an
exceptional career and earn far in excess of what was initially
anticipated.
[17]
This rule,
however, does not apply in this case because evidence was led as to
the career choice that the Plaintiff had already
made and her loss of
income was calculated based on this choice.
[117]
At the time of the accident, the Plaintiff was 18
years old. When the second actuarial report was prepared the
Plaintiff was 26
years old.
[118]
The Plaintiff has studied and worked after the
accident, but her personal account was that she does not plan to do
so in the future.
As explained by the experts, this is probably
because of the stress of working and studying caused by her cognitive
and behavioural
difficulties, but the Plaintiff did not specifically
give this evidence.
[119]
There is also no evidence that the Plaintiff is
attending therapy sessions, even though she is depressed and has
thoughts of suicide.
[120]
How do these factors impact on the contingency
deductions to be applied in this case?
[121]
I am satisfied that the 5 per cent contingency applied by the actuary
in respect of the past loss
of earnings is a suitable one.
[122]
I have some difficulty, however, with the 15 per cent contingency
suggested by the actuary for the
claim for future loss of earnings,
given
inter alia
: the Plaintiff’s age (currently 26
years old); her own attitude towards her future, complicated by the
fact that there is
no evidence of therapeutic interventions in an
attempt to alleviate the Plaintiff’s behavioural difficulties;
and the Plaintiff’s
state of mind, including her thoughts of
suicide (even though she says that she is not likely to take her own
life).
[123]
Plaintiff’s
counsel, himself
,
conceded in his written submissions that a 20 per cent contingency
for future loss of earnings would be appropriate. He referred
me to
Goodall
v President Insurance
[18]
in which the Court held that the so-called sliding scale of a half
per cent per year to retirement age should be adopted, that
is 25 per
cent for a child, 20 per cent for a
youth
and 10 per cent in middle age.
[124]
The Plaintiff is a youth and the starting point should thus be a 20
per cent contingency deduction.
However, given the other factors
which I have mentioned, namely the successful completion of the
certificate course and two working
stints, coupled with her
depression and the lack of evidence of any therapeutic interventions,
in my opinion an appropriate contingency
deduction based on the facts
of this case should be 25 per cent for the future loss of earnings.
[125]
The calculation is therefore as follows:
a.
Past loss of earnings:
R868 000, reduced to
R824 600 with the 5 per cent contingency,
minus R62 600
for actual earnings, a total of R762 600.
b.
Future loss of earnings: R11 342 100,
less a 25%
contingency of R2 835 525, totalling R8 505 575.
c.
TOTAL LOSS OF EARNINGS: R9 269 175.00
[126]
The RAF
Amendment Act cap now no longer applies. The cap per annum as at the
date of the accident was R234 366 per annum.
[19]
According to the Morris method of actuarial calculation, which was
accepted as being the correct method in
RAF
v Sweatman
,
[20]
the correct approach is as follows: “
If
in each year after the accident the actual loss exceeds the annual
loss determined at the date of the accident, the Fund is liable
to
pay only the lesser amount – the annual loss.”
[21]
According to my calculations, the cap that applies in this scenario
is R10 312 104.00 and the total loss of earnings
with a 25%
contingency deduction falls below this figure.
Order
[1]
The following order is issued:
a.
The Defendant shall pay to the Plaintiff an
amount of
R
R9 269 175.00 in respect of past and future loss of
earnings within 14 days from date of this order;
b.
Interest on the aforesaid amount calculated
from the day following
the lapse of a period of 14 days from the date of the granting of
this order to date of final payment, in
accordance with the
Prescribed Rate of Interest Act 55 of 1975
, read with
section
17(3)(a)
of the
Road Accident Fund Act 56 of 1996
, as amended;
c.
The Defendant shall pay the Plaintiff’s
costs of the suit, as
taxed or agreed, on a scale as between party and party, such costs to
include the costs of Counsel employed
on behalf of the Plaintiff,
including preparation, consultations with witnesses as well as the
three trial days and, and furthermore
costs incurred in respect of
the reports, addendums, joint minutes, appearances and reservation
fees, if any, of the following
expert witnesses:-
i.Dr. K Watt –
Orthopaedic Surgeon;
ii.Dr. AB Mazwi -
Neurosurgeon;
iii.Ms M Mphelo –
Clinical Psychologist;
iv.Ms V. Ruiters –
Occupational Therapist;
v.Ms M. Kheswa –
Industrial Psychologist; and
vi.Ms J. Valenini –
Consulting Actuary.
d.
In the event of the costs above in paragraph
(d) not being agreed,
the Plaintiff’s bill of costs will be served on the Defendants,
and the taxed bill of costs will be
payable within 14 (fourteen) days
after taxation.
e.
The compensation payments and costs referred
to in paragraphs (a) and
(d) above, are to be made in the Plaintiff’s attorneys’
trust banking account, the details
of which are as follows: Trust
Banking Account: Name: KOLISWA JOJO INC.
Bank:
First
National Bank
Branch:
Vincent
Park
Type of account: TRUST
Business
Trust
Cheque Account Number:
6[…]
Branch Code:
211-021
E-mail:
a[...]@kjojoattorneys.co.za
Reference:
Gwarube/MVA/Anda
f.
The Plaintiff and her attorneys,
Kholiswa Jojo Inc., have concluded a
valid fee agreement in terms of the
Contingency Fees Act 66 of 1997
.
J.
C. BOTHA
ACTING
JUDGE OF THE HIGH
APPEARANCES:
Counsel
for the Plaintiff:
Adv
Magadla
Instructed
by:
Koliswa
Jojo
Attorneys
East
London
For
the Defendant:
No
appearance
Heard
on:
26
January ; 14 February 2023
Delivered
on:
10
October 2023
[1]
See
Sil
v Raf
2013 (3) SA 412
(GSJ).
[2]
The
industrial psychologist indicated that there is no guarantee that
treatment and recuperation would alleviate the Plaintiff’s
functioning, but the reverse is also true. Treatment, including
therapy, which was recommended, could improve the Plaintiff’s
functioning.
[3]
2019 (2) SA 233
(SCA) at paras
[40]—[44]. Note that I have not included the citations for the
cases mentioned in the quote.
[4]
See
Chakela
v Road Accident Fund
[2017] ZAGPJHC 141.
[5]
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA) at para [11].
[6]
1948 (3) SA 913
(W) at 920.
[7]
Terblanche
v Minister of Safety and Security
2016 (2) SA 109
(SCA) at para [14].
[8]
1926 TPD 367
at 379-380.
[9]
1926 TPD 367
at
379.
[10]
RAF
v Guedes
2006
(5) SA 583
(SCA) at 585.
[11]
Southern
Insurance Association v Bailey
1984
(1) SA 98
(A) at 116-117.
[12]
AA
Mutual Association Ltd v Maqula
1978 (1) SA 805
(A) at 812;
Goodall
v President Insurance
1978
1 SA 389
(W) at 393.
[13]
RAF
v Kerridge
2019 (2) SA 233
(SCA) at para [30], quoting Robert J Koch
The
Quantum Yearbook
(2015) at 120.
[14]
Goodall
v President Insurance
1978
1 SA 389
(W) at 392H-393G;
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A) at 114F-115C-D.
[15]
2019 (2) SA 233
(SCA) at para [44].
[16]
See
too
Bee
v Road Accident Fund
2018 (4) SA 366
SCA at para [116].
[17]
Southern
Insurance Association v Bailey
1984
(1) SA 98
(A) at 117.
[18]
1978
(1) SA 389
(W). See too the more recent decision from this division
of
SJ
obo SJ v RAF
[2022] ZAECBHC 41 (11 November 2022) where the court referred to
Goodall with approval and referenced that according to Koch
Quantum
Yearbook (2022) 121 the standard contingency for a minor child is 25
per cent. In that case the minor child was born
in 2005.
[19]
See
RAF
v Sweatman
2015 (6) SA 186 (SCA).
[20]
2015
(6) SA 186 (SCA).
[21]
At para 12.