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[2022] ZAFSHC 259
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Moloi v Road Accident Fund (6707/2017) [2022] ZAFSHC 259 (20 October 2022)
FLYNOTES:
LOSS OF EARNINGS – FUTURE
Motor
accident – Emotional, cognitive and psychological effects of
injuries – Plaintiff obtained degree, was furthering
studies
and a trainee at an auditing firm – Collateral information
not supplied – Clinical psychologist’s
interview four
years old – Experts not interviewing current employers –
Loss of future income not proved.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6707/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MANANYANA
JANE
MOLOI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
6
SEPTEMBER 2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
20 OCTOBER
2022
[1]
In the early morning hours of 7 August 2016 the Plaintiff was a front
seat passenger in
a vehicle that collided with another vehicle at an
intersection in the city of Bloemfontein. She sustained a head injury
with multiple
open wounds on her face and soft tissue injuries on her
right lower limbs. Subsequently, the Plaintiff claimed damages from
the
Defendant in the amount of R8 711 483.00, calculated as
follows: General damages R900 000.00, future medical expenses
R200 000.00 and the future and past loss of income
R7 611 483.00.
[2]
On 21 April 2019 the merits of
the matter were settled by the parties at 100% in favour
of the
Plaintiff. On 24 May 2022 the parties agreed that the Defendant would
pay the amount of R800 000.00 to the Plaintiff
in respect of her
claim for general damages, and the matter was postponed for trial in
respect of the issue of loss of earnings
only. By agreeing as such,
there was obviously a mutual understanding between the parties that
the claim for future medical expenses
would not proceed.
[3]
The outstanding claim in respect of loss of earnings came before this
Court for hearing.
The Plaintiff herself did not testify, but she
called three expert witnesses to testify in her case. They were me.
Lenmarie Stanton,
a clinical psychologist, dr. L.A. Fourie, an
industrial psychologist, and mr. R. Immerman, an actuary. The
Defendant did not present
any evidence at all, and chose to rather
focus on any possible shortcomings in the case of the Plaintiff.
[4]
During the hearing, it soon transpired that the Plaintiff claim for
loss of income
is not really based on the physical injuries she
suffered in the accident, but on the effect of those injuries on her
emotional,
cognitive, psychological and social functioning. For
instance, me. Stanton testified that the purpose of her assessment of
the
Plaintiff was to assess her emotional state. On the date of the
assessment, she found that the Plaintiff was suffering from anxiety
and a depressed mood as a result of the accident. This condition
affected her emotional life, and it had an impact on her quality
of
life.
[5]
In the medico-legal report prepared by me. Stanton, it is mentioned
that clinical
syndromes are suggested in the Plaintiff’s test
profiles in the areas of generalised anxiety disorder and
posttraumatic stress
disorder. However, the interviews with the
Plaintiff took place some two years after the accident, in May 2018,
and some four years
before the hearing in Court. In addition, it
appears that the findings of me. Stanton are based on what only the
Plaintiff told
her, since no collateral information was obtained to
verify the information gained from the Plaintiff.
[6]
Me. Stanton testified that the Plaintiff completed her secondary
school years in 2014,
after which she enrolled for a degree in
political science at the Free State University in 2015. The following
year she changed
her course of studies and commenced with a B. Comm
accounting degree. Due to the accident, she had to repeat her first
year of
the accounting degree. The Plaintiff reported she was
struggling to complete this degree and that she was repeating certain
modules.
According to the Plaintiff, this was the result of poor
concentration caused by the accident.
[7]
In cross-examination, me. Stanton conceded that her assessment was
done four years
ago, and that her findings could now be different.
She does not know whether the Plaintiff received any treatment for
her problems
in the past four years, but she conceded that if she
did, her problems could have improved. When it was put to her that
the Plaintiff
had since obtained her degree and that she is presently
employed by an auditing firm in Johannesburg, me. Stanton conceded
that
such facts pointed to an improvement in the Plaintiff’s
condition.
[8]
Dr. L.A. Fourie, the industrial
psychologist, based his evidence on an addendum to his
original
report, which addendum is dated May 2022. In this addendum he
indicates that the Plaintiff discontinued her studies in
2018 at the
Free State University, because she failed to gain admission to exams
in most of her courses. The next year she transferred
to Unisa and
completed the degree of Bachelor of Accounting Science in 2021.
Referring to other expert reports that were made available
to him,
dr, Fourie mentions that the Plaintiff has unsightly scars on her
face. Due to her poor attention and memory, the Plaintiff
has
struggled to complete her degree, and it has been by dint of her
perseverance and determination that she achieved this.
[9]
Dr. Fourie further expressed the
view that, considering that the Plaintiff only completed
her degree
three years later than expected, she would enter the labour market at
least three years later than expected. This should
be calculated as a
loss of income for such time, according to his addendum.
[10]
In cross-examination dr. Fourie conceded that the
Plaintiff has a better chance of finding employment because
she is a
woman. He also confirmed that he did not make any inquiries with her
present employer. On a question by the Court, he
confirmed that the
Plaintiff is a woman of potential.
[11]
Mr. R Immermann, the actuary, testified that he did a second audit
because it emerged that the
Plaintiff was now employed. He calculated
her past loss of income from the date of the accident to the date of
his second report,
namely 20 May 2022. Having regard to the fact that
the completion of the Plaintiff’s studies was delayed by some 3
years,
and her entering the labour market delayed by the same period,
he calculated her past loss of earnings to be R1 117 832.00.
Applying a contingency deduction of 5%, the past loss amounted to
R1 061 940.00. I need to mention here that mr. Immermann
took into account that the Plaintiff is currently, and from the
beginning of the year, employed at a salary of R13 658.54
per
month. The Plaintiff’s past loss of income is therefore
R1 011 363.00. Applying the limit imposed by Act 19
of
2005, the net past loss amounts to R840 211.00.
[12]
When it comes to the future loss of income, the calculations of mr.
Immermann are based on the
addendum report of dr. Fourie. Based on
that report, mr. Immermann assumed that, having regard to the
accident, the Plaintiff will
enter the labour market in 2023, earning
in line with the Paterson B4/B5 median package. Thereafter, she will
progress to a career
ceiling by the age of 45, earning in line with
the Paterson D1 median package. Mr. Immermann mentioned that he was
informed that
after completing her degree in 2021, the Plaintiff is
currently enrolled at UNISA for an NQF8 course in Applied Auditing,
Financial
Accounting, Management Accounting and Applied Taxation. At
the same time, she is currently and with effect from 31 January 2022
employed as an audit trainee at Crowe Johannesburg. Mr. Immermann has
taken all these factors into account in making his calculations.
He
came to the conclusion that the Plaintiff suffered a net loss of
R3 121 850.00 as far as her future loss of earnings
are
concerned.
[13]
Mr. Immermann mentioned that dr. Fourie recommended a higher than
normal post-morbid contingency
deduction for the Plaintiff to account
for the factors he set out in his report. The factors mentioned by
dr. Fourie originated
inter alia
from the outdated report of
me. Stanton and a report by me. Gibson, an educational psychologist,
which is dated earlier this year.
Me. Gibson was not called to
testify, and her report was merely handed in. As a result, me. Gibson
could not be cross-examined,
and this factor obviously reduced the
probative value of her findings.
[14]
On the basis of what was found by me. Stanton and
me. Gibson, dr. Fourie had the following to say: “Also,
considering ms Moloi’s emotional problems, neuro-cognitive
deficits in the areas of attention, concentration, memory and
processing speed as well as mood changes and cognitive limitations,
she would be disadvantaged in the competitive workplace in
terms of
efficiency, effectiveness and productivity in comparison to normal
healthy individuals of the same age for similar type
of position.
Bearing also in mind the dental and facial injuries sustained, she
would be restricted in terms of her choice of occupations
and choice
of employer – putting her at a disposition comparing to her
peers… It is therefore recommended that a higher
post-accident
contingency be negotiated in this regard”.
[15]
In my view, dr. Fourie has not given sufficient
weight to the fact that the Plaintiff had obtained an auditing
degree
some 10 months ago and that she is currently a trainee at an auditing
firm, while she is furthering her studies at Unisa.
Nor has dr.
Fourie, me. Stanton and me. Gibson bothered to interview the current
employers of the Plaintiff to gain information
regarding her
performance at the workplace. In addition, the Plaintiff attended the
hearing in Court, and no scarring or facial
injuries could be
observed by the Court where she sat some 7 to 8 metres from the
bench.
[16]
Also having regard to dr. Fourie’s opinion
in Court that the Plaintiff is a woman of potential and
that she has
a better chance of finding employment because she is a woman, I am of
the view that the prognosis for the Plaintiff’s
future is far
too pessimistic, as postulated by dr. Fourie. Also bearing in mind
that the Plaintiff did not testify while she carried
the onus of
proving on a balance of probabilities that she suffered a loss of
earnings as far as her future career is concerned,
I have to conclude
that she has failed to make out a proper case for a future loss of
earnings.
[17]
In this respect I emphasize that the Plaintiff’s claim for
future loss of income is premised
on her alleged emotional and
cognitive problems arising from the injuries she sustained in the
accident, and not on the physical
injuries itself. Her present
emotional and cognitive state is therefore of vital importance in the
adjudication of this matter.
There is simply no evidence before this
Court to sustain a conclusion that her emotional state will have a
detrimental effect on
her future career. There is also no evidence
before this Court to suggest that her present performance at her
place of employment
is not up to standard. The Plaintiff herself did
not take the Court into her confidence by testifying and informing
the Court of
any emotional problems she is currently experiencing in
the workplace and in the furtherance of her studies.
[18]
What we do know with the benefit of hindsight, is that the Plaintiff
has managed to rise above
her problems and to obtain a degree and
employment, which, on a balance of probabilities, will only hold good
for her in the future.
The conclusion that she has failed to prove
any future loss of earnings, is therefore inevitable.
[19]
In the premises, the following order is made:
1.
The Defendant is ordered to pay to the Plaintiff the amount of
R840 211.00 for past
loss of earnings within 180 days of date of
this Order.
2.
The Defendant is ordered to pay the Plaintiff’s costs of suit,
including the qualifying
and reservation fees of me. Stanton, me.
Gibson, dr. Fourie and mr. Immermann not already covered by the Court
order of 24 May
2022.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv. N Gama
Instructed
by: Mokhetle
Inc,
Mahikeng
c/o
Phatshoane Henney Inc.
Bloemfontein
For
the Defendant: Adv.
J. Gouws
Instructed
by: The
State Attorneys
Bloemfontein