About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 85
|
|
Konraosdottir v Road Accident Fund (579/18P) [2022] ZAKZPHC 85 (8 November 2022)
HEADNOTE:
JUDGE
– LOSS OF INCOME – INJURED ABILITY
Motor
collision – Wrist fracture – Pain and weakness –
Caregiver – Still able to work as caregiver
– Unable
to take on positions with medium to very heavy physical demands –
Had chosen and studied for her career
– Bargaining power
significantly reduced.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.: 579/18P
In
the matter between
:
Fjóla
Dögg
Konráõsdóttir
Plaintiff
and
Road
Accident
Fund
Defendant
ORDER
1.
Judgment is granted
in favour of the plaintiff in the sum of R2 323 334.35.
2.
The amended draft
order marked X and signed is made an order of court
.
JUDGMENT
Delivered
on
..................
Mngadi,
J
[1]
The
plaintiff
claims
from
the
defendant
damages
in
the
form
of
loss
of earnings arising
out of a motor vehicle collision
.
[2]
The
plaintiff
is Fjóla Dögg
Konráõsdóttirof
Reykjavik
in
Iceland.
The defendant
is
the
Road
Accident
Fund
(the
fund)
juristic
person
established
in terms of
s2 of the Road
Accident
Fund
Act
56
of
1996
(the Act)
.
The Act
establishes
the the Fund and
declares its object to be payment of compensation
for loss of or
damages wrongfully caused by the drivers of motor vehicles.
[3]
The plaintiff was
injured in a motor vehicle collision that occurred on 30 March 2017
on the N2 Freeway in Empangeni when the car
in which she was a
passenger collided with a truck.
The defendant has
admitted liability for the damage suffered by the plaintiff as a
result of the injuries she sustained in the collision.
The plaintiff's
claims in respect of general damages, medical expenses and past loss
of earnings were settled.
The
issue for determination
is
the claim for future loss of earnings
.
[4]
The plaintiff in the
trial lead evidence of four expert witnesses, namely, Dr Seedat, an
orthopaedic surgeon; Professor L. Schlebusch,
a clinical
psychologist; Sonia Hill, a clinical psychologist and Felicity Jonck,
an occupational therapist.
The
plaintiff also testified.
The
defendant lead evidence of the two expert witnesses namely,
Thabisile
Nxumalo,
an
occupational
therapist
and
Louisa
Maritz,
an industrial
psychologist.
[5]
The
parties
agreed
that
experts'
reports
in
the
bundles
were
accepted
for what they
purport
to
be. Experts'
reports
of
the
experts
that
did
not
testify
were those
of
Dr.
Hogni
Oskarsson
specialist
psychiatrist
and
that
of
Wim
Loots,
the actuary.
The occupational
therapist as well as
the industrial psychologists prepared and filed joints minutes
.
[6]
The plaintiff in the
amended particulars
of
claim claimed R8 209 000.00 for loss of earnings.
[7]
Dr Seedat assessed
the plaintiff on 18 April 2018
.
He found that apart
from other minor
injuries,
the
plaintiff
sustained
a
significant
fracture
of
the
right
distal radius
,
which had
malunited.
On
the day of the accident, the plaintiff was admitted in hospital
and
treated
conservatively.
The
fracture
of
the
distal
radius
was manipulated
in theatre and a
plaster of paris applied, which was later, in preparation for
the
flight from
South Africa to Iceland, changed to a plaster backslap.
A local doctor
in
Iceland
continued treatment in a splint and thereafter started rehabilitation
with a physiotherapist.
However,
the fracture malunited with a critically apparent deformity
of the wrist.
Dr Seedat
in the report
expressed
an
opinion that the fracture of the right distal radius has malunited
with shortening and radial angulation, this resulted
in
a positive
ulna variance with impaction of the ulna on the carpal bones causing
pains in the
right
lower arm
including the wrist joint.
.
[8]
Dr Seedat in his
report opined that the deformity required surgical correction in
the form
of
an
osteotomy
entailing
the
cut
of
the
deformed
distal
radius, elongation,
realigned bone-grafted and fixed with a plate and strews.
[9]
Dr Seedat testified that he
examined the plaintiff again on 26 May 2022
.
He testified that the
further surgery that he had earlier recommended had risks of
complications
assessed
at 50%.
It
may result in the nerve damage in both sites, as well as infection
.
It was also not
assured of positive results.
Therefore
,
he stated he
would
understand
if
the
plaintiff
was
not
prepared
to
undergo
further
surgery.
He
said
such a decision in view of the high risk of further surgery is
reasonable and justifiable.
[10]
The occupational
therapists in the joint minute and confirmed in their evidence found
that the plaintiff had intact hand function
(both left and right),
intact function throughout
her
spine
,
left
upper
limb
,
right
shoulder
,
elbow and
forearm and both lower limbs
.
They found that she
demonstrated symmetrical posture
,
intact balance
and independent
mobility
.
In addition, they
found that the assessment
of
the right wrist and hand revealed reduced range movement at the right
wrist with associated pain and reduced right dom
i
nant
hand dr
i
p
strength.
They
agreed that the injury and sequelae thereof
r
esults
in the plaintiffs vocational capacity restricted to jobs with
sedentary to light physical demands
.
They found that she
will no longer be able to compete for Social and Healthcare
Assistants position with medium to very heavy physical
demands.
[11]
The industrial
physiologists agreed that in September 2016 the plaintiff began
working at Hill Husio (The Other House) which is
state facility
caring for the disabled
.
On 30 March
2017 she was paid 314 274 ISK (the Iceland Krona) per month with
benefits
i
ncluding
bonus
,
leave
,
overtime
,
food
allowance
.
Her
payslip
for September 2017
s
h
owed
that she was pa
i
d
a monthly wage rate of 340 939 ISK excl benefits
and overtime.
The plaintiff in 2019
as Social
and Health Assistant
she earned 4 091 268
ISK per annum
in
line with average
income
for caregivers
and
hea
l
th
workers in Iceland.
In
2020 the plaintiff as a childcare assistant and after care children
supervisor earned a combined income of 682 440 ISK per month
with no
benefit which is above income ranges of caregivers/care workers
.
They agreed that the
plaintiff would have had the capacity to continue working until
normal retirement age of 67 years
.
[12]
The Industrial Psychologists
Pre-Accident
summarised the position as follows
:
Although she
resigned from the above position as a caregiver
,
she obtained a
position as social and health assistan
t
at a similar
rate
.
She
continued to benefit from inflationary linked increases
and in 2019
she was earning
a basic
i
ncome
of 4 091 268ISK
per
annum
As
noted
,
she
resigned
for
reason seemingly
somewhat
unrelated to the
injuries,
due
to her
pregnancy
and with reference to
Ms Janek (Occupational Therapist) the family relocated to another
town
.
.
.
.
She
stayed
at
home
after
birth
of
her
first
child
and thereafter
she
started offering
a
service
as
a
care
assistant
in
January
2020
.
In
addition
to
the
above
,
she
also secure
work
in
mid
anbout
mud-2020
,
as
an
after-care
children
supervisor
at
lngimar
Bungubrekka
K
i
ndergarden
(aftercare
also/day-care)
.
It
is
noted
tyat,
on
everage
,
he
r
combined
income
from
the
above
mentioned
two
part
time
positions
,
is
currently
in
the region
o
f
682 440
ISK
per
month
with
no
benefits(and
/or
an
income
of
in
the
region
of 8 189 289 ISK per
annum)
.
.
.
r
esearch
suggested that the average salary increases
,
in
I
celand
over the past 16-32 months
,
have been in
the region of 3%-5% and consideration could be given to such annual
increases.
..
In
addition
,
it
is suggested that the plaintiff would have had the caopascity to
continue working until normal retirement age 67
.
The Industrial
Psychologists Post-Accident noted as follows
.
'
At
the time of the accident Ms Konraosd6ttir was on leave from 15 March
2017 and she was supposed to return to work early April
2017
.
However
,
due to the
accident
,
she
was off work for about eight weeks and returned to work
on the 16
th
May 2017.
Thus
,
any loss of
earnings
such
as in relation to unpaid leave, overtime,
and a reduction
in her monthly wage
amounts are indicated
..
.We
agree that Ms Konraosd6t
t
ir
has residual work capacity to continue working in her post accident
scenario
.
.
.
.We
agree
that
cognisance
should
be
taken
of
her
actual
income
and that Ms
Konraosd6ttir ia able to continue to work and to earn an income
similar to her pre mo
r
bid
earnings
...
it
is then reasonable
to sugges
t
that her
work
opportunities
,
will
now
and
in future be restr
i
cted
and narrowed
and
i
t
seems
that she will cont
i
nue
t
o
function as a reduced
level
of
occupat
i
onal
performance
and
considerat
i
on
could
be
given
to
a
higher post-accident
contingency.
'
[13]
The Industrial
Psychologists agree that the plaintiff has residual work capacity to
continue to work and to earn an income similar
to her pre-morbid
earnings.
They agree that as a
result of the injuries the plaintiff sustained in the motor vehicle
accident her
vocational potential has been compromised and her work opportunities
have
been
narrowed
since
she
is
unable
to
take
on
positions
of
Social
and Heathcare
Ass
i
stants
with medium to very heavy physical demands.
As a result, the
plaintiff
is
no
longer
able
to
compete
for
Social
and
Healthcare
Assistant
position with medium
to very heavy physical demands
.
[14]
The evidence of Professor
Schlebusch
read with the other
reports establish
that
pre-accident
the
plaintiff
had
some
mild
psychological
challenges
which
were exacerbated
by
her
involvement
in
the
motor
vehicle
accident
on
30
March
2017
.
These
challenges
did
not
affect
the
plaintiff
in
her
work
.
There
is
no
evidence
that such
challenges
could
not
be
managed
by
appropriate
therapy
.
However,
in
my view,
such
challenges
show
a
slight
risk
in
plaintiff
as
an
employee
on
long-term basis,
which justifies a contingency
above the average in
the pre- accident scenario
.
[15]
The
plaintiff
testified
as
follows.
She
was
born
on
17
December
1991.
She was 25
years
old
on
30
March
2017
when
the
accident
occurred.
She
is
now married
and
she
has
two
children
.
At the
time
of
the
accident
,
she worked
as
a Social and Health
Care Assistant working
in
an after school day care facility of children with special needs
.
She was studying
at the same time.
She testified that it
is
her
passion
to
work
with
people
with
special
needs
.
She
grew
up
in
her
family with persons
with special needs.
Whilst
employed, she studied for a tertiary qualification
to qualify
as a Social
and Health
Care
Assistant.
It is a three (3)
a tertiary (3) year
course
.
The accident
interrupted her studies but she eventually completed the course in
2018.
[16]
The plaintiff testified that after obtaining her qualification she
got a raise in her salary.
She
testified that after the accident, she struggled to carry out her
duties, which involved assisting persons with physical challenges
because she did not have strength
in
her right arm
and she was constantly in pain.
She then went on
maternity leave
.
She was on maternity
leave looking after her son and eventually her position was filled
.
She testified that
she relocated
to
a small town and took a job supervising at the Kindergarden children
aged 8 to 10 years
.
[17]
The plaintiff since 2019 she took an additional job looking after a
child with special needs.
She
left the Kindergarten
in
December and she is now involved in a Green House which involves
cutting the cabbage and putting it in boxes but it is a summer
job
and she gets taken if there are vacancies.
The plaintiff
testified that as a Social and Health Care Assistant
,
the job she is
qualified
for,
she is unable
to
carry it
out
100%. She
said
due
to
the
weakness
of
her
right
arm,
she
cannot
carry medium to heavy
duties.
The
job requires that one must assist physically challenged persons
by transferring
them,
putting
diapers
on
them
or
clothing
them. She has adopted
by
relying
more
on
her
left
arm
although
she
is
right
handed.
In
addition, she is in
constant pain on the right arm.
[18]
In
my
view,
the
plaintiff
post-accident
has
managed
to
find
alternative
relatively
well
paying
employment.
That employment
is
of
a
temporary
nature
with no job security.
It is not necessary
to determine plaintiff's actual past loss of income because the
defendant's counsel proposes a figure of R48
300 and the plaintiff's
counsel R45 000.
Experts
agreed that the plaintiff's injury has stabilised.
There are no
prospects of any improvement.
It
is expected that at some stage she will develop arthritis
in the
right
wrist.
Experts
agreed
that
the
pain
in the
right
wrist
is a
long term.
Similarly,
is the loss of
strength,
which
causes
the
plaintiff not to be able to carry anything, weighing more than eight
kilogram.
The
job of being a Social
and
Healthcare Assistant involves physically assisting physically
disabled persons.
The
accident has compromised the plaintiff's competitiveness on the open
labour market and in her chosen career.
It has compromised
her ability to find employment, her ability to keep employment,
her ability to
advance in her career.
It
has also reduced
the
lifespan of
her employment.
[19]
I accept
the evidence
that
the plaintiff's
right hand is not
fully
functional
and that it is
unlikely to improve in any significant manner.
Dr Seedat testified
that the chronic
pain
experienced
by
the
plaintiff
is because
of
the deformity
in
the
manner the facture
has
healed
.
It follows
that
the
pain
is long-term.
I
accept
that
the plaintiff's
capacity to earn future income as a result of the accident is
significantly reduced.
The
plaintiff in the chosen career, a career for which is passionate and
for which is qualified her has a vocational capability
significantly
restricted. The plaintiff's post -accident work history shows her
determination to work. In Iceland the unemployment
rate is very low and
there is high life expectancy.
The plaintiff is of
good health.
The
accident has had no effect on her life expectancy.
The plaintiff in her
fifties
would
have
settled
in her
work
with
reduced
physical
activity.
I
am of the
view
that
it
can
be
accepted
that
the
plaintiff
would
retire
at the normal
retirement age
.
[20]
Both
parties
agreed
that
plaintiff
qualifies
for
compensation
for
loss
of
future earnings.
Plaintiff's counsel
submitted that to determine future loss of income or earning capacity
it becomes necessary to compare pre-morbid
earning capacity and
post-morbid earning capacity, the difference after the application of
contingencies represents the future
loss of earning capacity.
He submits that in
plaintiff
'
s
case the issue is the determination
of post-morbid
contingency
.
He provided
three scenarios. In
all three scenarios
,
had the
accident not occurred, a contingency of 15% to total earnings of RS
897 275 results in R7 562 684.
The three scenarios
applying post morbid
contingencies
of
35%,
40%
and
50%
respectively
result
in
R2 757 879
,
R2 224 319 and
R3 114 046 respectively
.
The first figure is
arrived at assuming retirement at age 57
.
[21]
The defendant
submitted that relevant factors to determine an appropriate
contingency
in
the
case
of the plaintiff
are
the following;
the
employment
history
of the plaintiff,
whether the plaintiff was a steady employee
,
whether
plaintiff regularly changed jobs, state of general health of the
plaintiff and any other factor relating to plaintiff's
responsib
i
lity.
The defendant
submitting that the plaintiff's earning capacity pre-accident and her
earning capacity post-accident do not differ
much
,
and thus
applying contingency of 15% pre-accident and contingency of 20%
post-accident calculates plaintiff's total loss of future
earnings to
R634 269.
[22]
The courts when making
awards for potential or future losses, the practice is to make use of
contingency deductions to provide for
any future events or
circumstances, which
are possible but cannot be predicted with certainty.
The determination
of contingencies
is a process
of subjective
impressions
or estimation. It is
guided largely by the court's consideration of the circumstances
of the case and the
impression
they
create in the mind of the court.
The contingency
deductions
are a key in
converting uncertainties
to
concrete calculations
as
well as in exercising trade-offs
intra
uncertainties.
The
determination
of
contingencies
must
be
founded
on
relevant
considerations
and
be
within
the
range
of
acceptable
realities
of
life. The
determination
is
made in the context that the future is uncertain
and it is difficult
to
judge
how
a
person's
career
prospects
would
be
and
would
have
been
over
a considerable
period
.
What factors would
have
an impact
and in what
degree
in the career
of
the
individual. The
deduction
for
contingencies
is
meant
to
take
into account
the
vicissitudes
of
life
.
They
include
the
possibility
that
the
plaintiff
may have passed on
early in life
,
may have lost
employment, may have not progressed in her
career,
may
have
changed
career,
may
have
not
qualified
in
her
career,
may have less than a
normal expectation of life.
[23]
The rate of the
discount cannot of course be assessed
on any precise
logical basis: the assessment must be largely arbitrary and must
depend upon the Judge's impression
of
the
case.
(
Southern
Insurance
Association
Ltd
v
Bailey
NO
1984(1) SA 98 (A) at
116H.)
In
order to assess the plaintiff's future loss of earnings a comparison
should
be made
between
what
would
she
would
have
earned
pre morbid and
what she is likely to earn post-morbid.
Experts are
frequently called in to assist the court, but courts are not bound by
the opinion
of
experts.
It
is the duty of the experts to furnish
the
court with the
necessary scientific criteria for testing the accuracy of the
expert's conclusion to enable the court to form an
independent
judgment by the application of the
criteria
to the
facts.
The
value of the expert evidence depends on a
large
measure on the
qualifications and experience of the expert, the application by the
experts of the
criteria
to the
facts of the case and the logical connection
between the expert's
conclusion
and
the basis of the conclusion
.
[24]
The court in
Goodall
v President Insurance
1978
(1) SA 389
(W) at 392-3
referred
to a case
where 20 per cent contingency
was
fixed for a 25 year old plaintiff and a contingency of ten (10) per
cent for a 46 year old plaintiff..
In
the
so-called
sliding scale method a contingency of half a percent per year to the
retirement age in the
'but
for' scenario
working out to 25% for a child, 20% for a youth and 10% for middle
age are the normal
range.
In the 'but
for'
scenario
Road Accident
Fund usually agrees
to deductions of 5% for past loss and 15% for future loss as the so
called
normal
contingencies.
In
Duma
v
Road
Accident
Fund
[2019]
JOL
41486(KZP)
the court for a
47-year-old plaintiff incapable of assuming any form of employment,
applied
a
contingency
deduction
of
7%
pre-morbid
and
7%
post morbid
.
[25]
The defendant
,
in my view,
overemphasised the fact that post accident the plaintiff
suffered
no
significant
loss
of income.
This was
due
to her
industriousness in
finding alternative temporary employment.
It is significant
that the plaintiff had chosen her career, obtained the necessary
tertiary qualification and secured suitable employment.
The injury has had
a huge impact on
that.
Her
career
is now in a limbo
.
She is in the mercy
of prospective employers.
Her
bargaining power is
reduced
significantly.
She
receives compensation
once
.
Compensation
is required to be
fair and just.
I
am of the view that scenario 2A by the plaintiff's counsel fits the
situation
of
the plaintiff and it results in a fair and just compensation
to the plaintiff.
[25]
The
plaintiff loss of past earnings are determined at R45 000.00.
The past medical
expenses are agreed at R54, 015.35 and her loss of future earnings is
determined
at
R2 224 319
.
00
.
In the result, it sis
ordered
a
follows:
3.
Judgment is granted
in favour of the plaintiff
in
the sum of R2
323 334.35.
4.
The amended draft
order marked X and signed is made an order of court.
APPEARANCES
Case
Number
579/2018P
Plaintiff
represented
by
KC
McIntosh
SC
Instructed
by
Askew Martin and
Drain Inc.
DURBAN
Defendant
Ms Govender
Instructed
by
Office of State
Attorney DURBAN
Date
of Hearing
26 October 2022
Date
of Judgment