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[2021] ZAGPPHC 51
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Potgieter v Road Accident Fund (82531/2017) [2021] ZAGPPHC 51 (26 April 2021)
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 82531/2017
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:26/04/2021
JAY
DE
POTGIETER
PLAINTIFF
AND
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
N V KHUMALO J
I.
INTRODUCTION
[1]
The Plaintiff, a 21 year old aircraft sheet metal engineer assistant,
instituted an action against the Road Accident Fund (“RAF”)
pursuant to the provisions of
s17
of the
Road Accident Fund Act, 56
of 1996
as amended (“the RAF Act”), claiming damages for
injuries he sustained in a motor vehicle accident that occurred on
10
September 2016 at the corner of Park and Hill Street in Arcadia.
[2] According
to his particulars of claim, he was a passenger in a Maroon Honda
whose
driver and registration number were unknown to him, when a
motor vehicle also with unknown registration numbers skipped a red
robot
at an intersection and collided with the Honda.
[3]
In reply to Plaintiff’s request for further particulars the
Defendant
confirmed that the accident was of a single motor vehicle,
(that is the Honda) whose driver was Pieter Wagenaar. The particulars
of claim were however never amended.
[4]
The Plaintiff who was 18years old and a scholar when the accident
occurred,
sustained a fracture on the right ankle and also on the
left radius (the wrist).
[5]
At the beginning of the trial the parties indicated that the merits
and
the Defendant’s degree of liability were settled at 100% in
favour of the Plaintiff.
[6]
The parties also confirmed that the Defendant undertook to provide
the
Plaintiff with a s17(4)(a) undertaking covering 100% of the
Plaintiff’s future medical expenses.
[7]
The issue and quantum of general damages was referred to the Health
Professional
Council of South Africa (“HPCSA”) for
determination and was accordingly postponed
sine die.
[8]
Consequently the only issue for determination on trial was damages
for
past and future loss of earnings for which the Plaintiff had in
his particulars of claim claimed amounts of R200 000.00 and R400
000.00, respectively. The amounts were not amended until date of
trial.
[9]
The Defendant has specifically pleaded that the Plaintiff’s
claim
for past and future loss of earnings and interference with
earning capacity is subject to the provisions of s 17 (4) (c) and s
17(4A) of the RAF Act.
[10]
At the judicial case management conference for trial readiness held
on 14 February 2020,
the parties agreed that the issues in dispute
were to be determined by the court solely on the contents of the
various opposing
experts’ reports and the joint minutes. The
reports that were filed on record on behalf of the Plaintiff at the
time, were
those of, inter alia, Dr J P Marin an Orthopaedic Surgeon,
Dr N Du Plessis an Educational Psychologist, N Arm an Educational
Therapist,
Amanda Rennie an Industrial Psychologist, L Grootboom a
Clinical psychologist and J Sauer an Actuarial Scientist.
[11]
The Defendant was to file reports by Dr Ngobeni an Orthopaedic
Surgeon, Dr Methi an Educational
Psychologist, T Matsepe an
Occupational Therapist and O Sechudi an Industrial Psychologist. It
was confirmed at the time that the
Plaintiff had attended all the
scheduled consultations with the mentioned experts. The joint minutes
compiled by the experts were
also going to be filed as part of the
reports.
[12]
The parties further agreed to the admission of these reports in
evidence but
not to the correctness thereof.
II.
THE DISPUTE
[13]
The issue to be decided was whether as a result of the injuries
sustained the Plaintiff’s
capacity to earn was diminished, and
if so, the extent thereof. The Plaintiff carried the onus of proof.
[14]
I was advised that in dealing with the issue, the trial was now to
proceed only on the
reports filed by the Plaintiff as the Defendant
failed to file any expert reports.
[15]
The amounts claimed for the loss of earnings were said to have been
calculated based on
the contingency of the Plaintiff’s loss of
earning capacity and necessity for early retirement or alternatively
as a globular
amount based on the fact that the Plaintiff is unable
to attain the pre-accident earning capacity due to the injuries
sustained
by him.
Ill.
SUBMISSIONS BY THE PLAINTIFF
[16]
Ms Strydom on her submission on behalf of the Plaintiff pointed out
in relation to the
sequelae consequent to the injuries sustained by
the Plaintiff, that the left distal radius (wrist) hairline fracture
and pilon
fracture on the right ankle, necessitated an open reduction
and internal fixation. She highlighted that
Dr Marin
reported
that presently the Plaintiff is still experiencing pain on his wrist
and relative weakness in his left arm. The x–ray
report showed
a mild cortical irregularity at the lateral aspect of the distal left
radius that may be related to a previous injury
as well as a small
soft tissue calcification at the tip of the ulnar styloid suggestive
of a small osteophyte or osseous fragment
also from a previous
injury. He was also still experiencing pain in his ankle, exacerbated
by inclement weather as well as prolonged
standing or walking. The
x-ray indicated plates and screws still in situ and the screws also
traversing the right medial malleolus
which therefore poses a
difficulty for the Plaintiff walking up and down the flight of
stairs, whilst experiencing an occasional
stiffness in the ankle
joint. The mild sclerosis of the distal tibia articular surface may
suggest early degenerative change with
possibility of the
degeneration of his ankle progressing to end stage osteoarthritis. In
such circumstances provision is made for
an ankle arthrodesis. It was
also noted that he walks with an uneven gait and had reported having
lost sensation when he sits down.
[17]
Strydom noted that Marin determined from the sequelae that the
accident and the accompanying
injuries will not have a detrimental
effect on the Plaintiff’s life expectancy but he would not be
able to work to the normal
retirement age of 65 even if accommodated
in a permanent light duty/sedentary working environment which she
recommends, provision
must still be made for a five-year early
retirement. If not accommodated, she advised that he should not
perform physical labour.
Marin noted that his productivity and
working ability have been negatively impacted by the accident. She
pointed out that with
the recommended treatment the Plaintiff‘s
productivity will improve, however as the degeneration in the right
ankle progresses
the productivity will decrease again. She therefore
recommended Plaintiff to be accommodated in a permanent light
duty/sedentary
working environment as determined by the Occupational
Therapists, N Arm. Marin also opined that the Plaintiff’s
decreased
physical wellbeing causing participation restrictions, pain
and suffering, diminished vocational ability and financial loss.
[18]
Strydom noted further that according to
N Arm
, the Plaintiff
received surgical treatment and was discharged after two weeks with a
wheel chair. He used it for two weeks and
used bilateral crutches for
two months. The expert’s assessment show that he is able to
carry up to low range medium work
demands. His occupation as a
general worker assisting aircraft sheet metal engineers falls within
the light mid- range of medium
work. From a physical perspective, he
does not possess a total fit for his current occupation requiring
some form of reasonable
accommodation to thrive. He presents with
exertional and postural limitations related to the injuries,
requiring extensive reasonable
accommodation to meet his
significantly diminished residual functioning, particularly when
considering the anticipated progress
of the degenerative changes
already present at such young age (21 years). This may prejudice him
against his current and other
prospective employers. Arm therefore
concluded that it is unlikely that Plaintiff could work until full
retirement in a spectrum
of work beyond and above lower ranges of
medium work.
[19]
On Plaintiff’s likelihood of reaching his pre-accident educable
potential, Strydom
referred to N Du Plessis’ assessment report,
(Educational Psychologist) that when considering the Plaintiff’s
current
level of cognitive ability, it is apparent that on the
premorbid level he may have presented with a suggested average
cognitive
potential, based on Lezak’s opinion as well as his
developmental history and family educational history. On assessment
the
Plaintiff was said to present with notable psycho emotional,
social and behavioural difficulties, which will inadvertently hamper
his cognitive performance and ability to cope with the demands and
expectation of formal education. Du Plessis had further suspected
a
correlation between the onset of these psycho emotional, social and
behavioural difficulties at the time of the accident and
concluded
that the accident in question has resulted in the Plaintiff
struggling at a psychological level. Although it was also
considered
likely that the accident may have rather exacerbated an underlying
difficulty that would typically be attached to the
trauma of parental
divorce. Du Plessis observed that the Plaintiff’s cognitive
performance appears to be poorer in comparison
to a suggested
pre-accident potential (No school reports or any other documentary
evidence), likely to be negatively influenced
by the
post-accident exacerbation of psychological difficulties thus
hampering his ability to reach his pre-accident learning potential.
His cognitive functioning and academic performance may additionally
be negatively impacted by the physical restrictions and pain
as they
will serve as distracting factors that will untimely hinder his
ability to concentrate adequately. Overall, he concluded
that
Plaintiff does not present with sufficient scholastic and cognitive
ability to cope with the demands and expectations of any
academic
related learning demands.
[20]
Du Plessis took note that the FCE findings indicate that the
Plaintiff was able to carry
up to Lower range Medium Work Demands. He
therefore is of the opinion that if the Plaintiff does not maintain
his present employment,
he could be seen as an unfair competitor when
applying for employment in the open labour market as a result of the
injuries he
sustained. (This is in contrast with the fact that he did
find a job immediately after matric following the accident and
notwithstanding
the sequelae alleged). A measure of normality setting
in.
[21]
On the report of M Rennie, the Industrial Psychologist, Strydom noted
that her postulation
was in line with the Educational Psychologist’s
report that the Plaintiff will require extensive reasonable
accommodation
to meet his significantly diminished residual
functioning, particularly when considering the anticipated
progression of the degenerative
changes already present at such a
young age. This may prejudice him against his present employer and
other prospective employers,
especially taking into consideration
that he is an unskilled labourer. Ongoing that may tend to make him
psychologically more vulnerable,
and probably less able to retain the
drive, perseverance and concentration, which would make it difficult
as a job incumbent to
meet the job requirements and therefore impact
on his performance. She concluded that from a physical perspective
the Plaintiff
does not possess a total fit for his current
occupation. Future absenteeism from work to attend to recommended
medical treatment
will as well affect his work productivity and his
physical endurance will be reduced particularly when pain is
triggered.
[22]
Furthermore Rennie reported on the pre-accident employment prospects
that the Plaintiff
was likely to complete Grade 12 and to have
continued to complete a higher certificate level of education (NQF5),
entering the
labour market at approximately Patterson Job Grade A3,
with a potential to develop to approximately grade C1/C2 (skilled
employment)
by approximately age 45 which would have been his career
ceiling and retired at age 65. On post- accident employment prospects
Rennie reported that the employers complain about the Plaintiff
taking regular breaks. She confirmed that Plaintiff’s
employment
is sympathetic and that he is being accommodated. Rennie
has also alleged that the Plaintiff told her that standing at a table
to build helicopters parts requires bending and stretching as well as
climbing up and down. He experiences pain and discomfort whilst
performing these tasks and also whilst driving. He is allowed to sit
when he experiences too much pain and not suited to any physical
requirements for his current role. Rennie indicated that the Clinical
Psychologist, Grootboom mentioned the combination of Plaintiff’s
emotional and physical difficulties which renders him a vulnerable
employee who may find it difficult to secure and or maintain
gainful
employment in future should he have to leave his current employment
for any reason. His work endurance and habits will
be negatively
affected when pain is triggered and he is at risk of experiencing
despondency, fluctuating motivation and commitment
in the work
environment. He therefore will continue to require work place
accommodation or a sympathetic employer. She postulates
that
Plaintiff will retain his current employment in an accommodated work
role with his current sympathetic employer, should he
however not
retain his current employment he is likely to experience extended
periods of unemployment and retire five years early.
He is not likely
to develop beyond the current level of median semi - skilled
employment and only inflationary increases would
apply.
[23]
Ms Strydom finally submitted, based on the report of Ms Grootboom,
that the Plaintiff completed
Grade 1 to 12 without any failure. He
passed Grade 12 after two months of absence following the accident
although with a significant
drop in his marks (no proof or record of
any of his scholastic performance provided). She noted the post-
traumatic stress disorder,
helplessness and mildly elevated levels of
depression which affect his functioning and interpersonal
relationships. Also that it
seems physical challenges and pain are
having a significant impact on his well-being psychologically, the
impact of the accident
having impeding optimal psychological
functioning. Plaintiff is said to have reported self- esteem changes,
over anxiety levels
which may be attributable to disconnection from
himself and his emotion which often leads to underreporting of
especially depressive
symptoms. She opined that severely depressed
people are often detached from their emotions and may experience an
overwhelming sense
of hopelessness. Projective tests are said to
indicate a strong tendency towards aggression and destructive
behaviour in terms
of verbal outbursts and continuous fighting with
other people, likely to have a negative impact on his motivation,
efficiency and
productivity in the workplace and may further affect
his relationships with co-workers and employers. The combination and
extent
of his emotional and physical difficulties rendering him a
vulnerable employee in the open labour market in terms of securing
and
or maintaining gainful employment in future, should he have to
leave his current employment.
[24]
Finally Ms Strydom referred to the following calculations and
contingencies by J Sauer,
the Actuarial, which were based on the
Industrial Psychologist addendum report:
Premorbid
Post
accident
Total
Loss
Past Earnings
Contingency 5%/5%
R256 325
211 575
44 750
Total past Loss
R243 509
200 997
42 512
Future
Earnings
5
424 690
1
867 761
3
556 929
Contingency 20%/40%
Total Loss
R4 339 752
1 120 656
3 219 096
Total loss of earnings
3 261 608
The
contingencies applied on the calculations are of a spread of 20%
between the pre and post morbid. Strydom suggested that 25
%
contingency be applied on the proposed pre- accident amount and on
the post-morbid be lowered to 35%, proposing a 10 % spread
instead of
the alternative 30 % spread proposed by the Defendant.
IV.
THE DEFENDANT’S SUBMIISSIONS
[25]
Mr Lebea on behalf of the Defendant addressed the issue of the loss
of earnings
by first referring to the matter of Southern Insurance
Association v Bailey NO
1984 (1) All SA 98
at 113 (G). He pointed out
that Marin’s report on the employability of the Plaintiff which
suggests an early retirement age,
that is 5 years earlier, due to the
injuries and the sequelae, notwithstanding being accommodated in a
permanent light duty position,
is speculative. He argued that even
the reporting on his education as well, stating that taking into
account his family’s
educational background, none of them is
certificated beyond Matric, except for the father who has a fitter
and turner certificate.
He argued that if Plaintiff’s potential
genetic pre-disposition is taken into account, he is not affected
educationally.
In other words, Plaintiff is where he is supposed to
be.
[26]
Mr Lebea further pointed out that the reports indicate that the
injury has affected the
Plaintiff’s productivity and therefore
his employment. His ankle due to his standing endurance being
affected. However, Plaintiff
managed to get employment after the
accident with all the alleged challenges. The likelihood of
unemployment therefore not a given.
The Defendant therefore with
reference to
Burger v Union National South British Insurance Co
1975 (4) SA 72
(W) 75D-G suggests an amount of R800 000.00 or a
premorbid contingency of 15%/ 30%, which is a spread of 15 %. He
suggests that
his capacity is to be limited to 10%
disenfranchisement. He said he should be considered for reaching his
ceiling at most at 48
due to the ankle problem as per the
Occupational Therapist report.
V.
FURTHER CONSIDERATIONS
[27]
Further to the submissions by the parties, going through the reports
the following
was further noted that Plaintiff comes from an average
cognitive and academic background. Arm reported that based on
Plaintiff’s
educational and vocational history, his premorbid
vocational potential appeared to meet the requirements of work that
falls within
the light medium and unskilled. Rennie, referencing Du
Plessis, the Educational Psychologist’s postulation, reported
that
it is likely the Plaintiff would have completed Grade 12 (maybe
with NFQ5) and entered the job market at Paterson Job Grade A3,
developing through semi-skilled employment, which is likely to have
been his career ceiling by approximately 45. Further on the
pre-accident earnings
,
juxtaposed against the fact that at the
time of accident he was a scholar, it was further reported that he,
at some stage post-
accident, was unemployed for three (3) months
during which he was not remunerated. That period of unemployment is
then considered
and calculated as a post-accident previous actual
loss. The likely earnings had the accident not occurred were based on
projection
that he would have likely reached a ceiling by
approximately age 45 and a retirement age of 65 years, as indicated
by Rennie on
consideration of Marin’s report.
[28]
On post-accident earnings
,
he was reported to be earning a
basic salary of R6 262.63 per month, R75 151.56 per year, as per
payslip dated 03 March 2019, which
is just below the median for
semi-skilled employment. He is responsible for performing repairs and
maintenance on metal body components
also for grinding and smoothing
metal surfaces. He was found to still maintain the ability to meet
the demands of light to lower
ranges of medium work, 8 hour day/40
hours per week. It was recommended that he be compensated for the
loss during the time he
would be receiving and continuing to receive
the recommended medical treatment. Also to be taken into account that
his highest
level of education was now going to be NQF4 instead of
NQF5 and was no longer going to be able to continue to develop his
skills,
to Paterson C1/C2 (skilled employment) but as a vulnerable
employee requiring accommodation who would remain on median
semi-skilled
employment (non- corporate sector) (R82 000.00) instead
of a natural progression from Paterson Job Grade B to skilled
employment
at C (R326 000 basic salary until 45 being the ceiling
retiring at age 65). It is therefore proposed that considering all
these
a higher post- accident contingency should be applied. The
future loss is then addressed by considering the difference between
pre-and post- accident earnings.
[29]
It is also of significant importance to note that factors unrelated
to the accident were
reported to have also contributed to the
despondency of the Plaintiff including traumatic experience of his
parent’s divorce
which happened when he was [..] years old
whereupon he was separated from them to go and stay with his aunt
(mother’s sister,
her husband (uncle) and their children with
no therapy or counselling provided for the trauma, a situation that
was most likely
exacerbated by the accident in question.
[30]
At time of accident he had no employment history. He on January 2017,
straight after matric
landed a job as a general worker (Aircraft
Sheet Metal Preparation) at ADT Heli-Work. He had no prior training
but received it
on the job. Notwithstanding coming out of an accident
with the stated challenges, he was successful in his training and no
shortcomings
mentioned to have been a hindrance. He is said to have
remained on that job until to date with the exception of the three
months
from October to December 2019 (two and a half years from date
Plaintiff was hired) when according to Rennie’s statement
(apparently
informed by Plaintiff’s employer with no records
provided) Plaintiff was fired and after the three months rehired on
the
same terms and position.
[31]
In addition, Plaintiff has been reported to suffer from a stress
disorder and elevated
depression which affects his functioning noted
by Du Plessis to have left the Plaintiff a psychologically vulnerable
individual
at risk for the development of more serious psychiatric
problems if left untreated. It was also noted that his psycho
emotional
and behavioural history prior to the accident was not
reported, although a psycho emotional history as per traumatic
experience
as a result of his parents’ divorce reported. Du
Plessis also noted Plaintiff to present with border line and or
poorly developed
verbal and performance ability with a working memory
that is also poorly developed. Plaintiff’s processing speed has
been
indicated as falling in the below average range. Du Plessis has
however also reported that Plaintiff does not present with delays
in
processing incoming information, but does appear to struggle keeping
this information in his short term memory. Plaintiff also
does not
present with any functional impairments that are typically attached
to people exposed to traumatic brain injury. He presents
with a mild
post -traumatic stress disorder and very low anxiety levels. His
career options and tertiary study may be limited by
his reading,
mathematical and writing ability which is significantly behind for
his age. This is also not accident related.
[32]
I have further, taken into consideration the reporting by the
Industrial Psychologist that
Plaintiff did not receive any formal
training but on the job training, acquiring his technical skills as
an aircraft sheet metal
worker (therefore semi-skilled) even though
it is alleged that he had to stand on a table to build helicopter
parts which requires
bending and stretching as well as climbing up
and down whilst experiencing pain and discomfort performing those
tasks. Rennie referred
in her report to a telephone call with the
Plaintiff’s employer whereupon the latter indicated that the
Plaintiff acquired
the skills successfully, with no difficulties
identified and his work thereafter satisfactory. Difficulties were
only related to
repeated pain in his right ankle as his work requires
him to stand for 8 hours a day which he is said to be unable to do
and finds
it extremely difficult. His ankle becomes swollen. On the
other hand, Rennie reported on the relationship Plaintiff has with
his
co-worker that she was informed that he gets on well with his
team.
VII.
LEGAL FRAMEWOORK
[33]
A matter of diminished capacity to earn is a factual issue in any
way, whilst the extent
thereof will depend on the judge’s
discretion of what is fair under the circumstance of each case. See
Sandler v Wholesale
Coal
Suppliers Ltd
1941 AD
194
at 199.
[34]
As a result mindful of the fact that the Plaintiff bears the onus to
provide
sufficient proof of the loss, it is trite that a court has a
wide discretion in assessing quantum of damages due to loss of
earning
capacity and has a large discretion to award what it
considers right. It is literally speculative, as emphasized in
Southern Insurance Association v Bailey NO
1984 (1) All SA 98
at 113 (G) by Nicholas JA that:
"Any enquiry into damages for
loss of earning capacity is of its nature speculative, because it
involves a prediction as to
the future, without the benefit of
crystal balls, soothsayers, augurs or oracles. All that the court can
do is to make an estimate,
which is often a very rough estimate of
the present value of loss"
[35]
Contingencies are the “hazards of life that normally beset the
lives and circumstances
of ordinary people, Corbert & Buchanan,
The Quantum of Damages, Vol II 360 at 367.1 and should therefore, “by
its very
nature, be a process of subjective impression or estimation
rather than objective calculation; see
Shield Ins. Co. Ltd v
Booysen
1979 (3) SA 953
(A) at 965G-H. Contingencies for which
allowance should be made, would usually include the following:
(a) the possibility of
illness which would have occurred in any event;
(b) inflation or deflation
of the value of money in future; and
(c) other risks of
life such as accidents or even death, which would have become a
reality, sooner or later, in
any event; see Corbett & Buchanan,
The Quantum of Damages, Vol I at 514
[36]
In
Burger v Union National South British Insurance Co
1975 4
SA 72
(W) 75D-G. 21 Colman J explains, as quoted with consent by
Corbett JA in Blyth v Van den Heever
1980 1 SA 191
(A) 225,
that:
“
how the court should take
account of an uncertain future event in the assessment of future
loss: A related aspect of the technique
of assessing damages is this
one: it is recognised as proper in an appropriate case, to have
regard to relevant events which may
occur, or relevant conditions
which may arise in the future. Even when it cannot be said to have
been proved, on a preponderance
of probability, that they will occur
or arise, justice may require that what is called a contingency
allowance be made for a possibility
of that kind. If, for example,
there is acceptable evidence that there is a 30 per cent chance that
an injury to a leg will lead
to an amputation, that possibility is
not ignored because 30 per cent is less than 50 per cent and there is
therefore no proved
preponderance of probability that there will be
an amputation. The contingency is allowed for by including in the
damages a figure
representing a percentage of that which would have.
That is not a very satisfactory way of dealing with such
difficulties, but
no better way exists under our procedure.”
in instances where the loss is
difficult to prove (eg uncertain future loss) the measure of proof is
lighter and the plaintiff needs
only to prove the degree of
probability that the uncertain loss will ensue. Robert Koch 22 refers
to this technique of damages
assessment in the case of uncertain loss
as the "value of a chance".
[37]
In
Southern
at 113 H – 114 E in the already quoted
judgment of Nicholas JA, the learned judge of appeal also poignantly
stated the following
at 116G- 117A:
"Where the method of actuarial
computation is adopted, it does not mean that the trial Judge is
"tied down by inexorable
actuarial calculations". He has "a
large discretion to award what he considers right"
(per
Holmes JA in
Legal Assurance
Co
Ltd v Boles
1963
(1) SA 608
(A) at 614F).
[25] exercising that discretion is the
making of a discount for "contingencies" or the
"vicissitudes of life".
These include such matters as the
possibility that the plaintiff may in the result have less than a
"normal" expectation
of life; and that he may experience
periods of unemployment by reason of incapacity due to illness or
accident, or to labour unrest
or general economic conditions. The
amount of any discount may vary, depending upon the circumstances of
the case. See
Van der Plaats v South African Mutual Fire and
General Insurance
Co
Ltd
1980 (3) SA 105
(A)
at 114
- 5. The rate of the discount cannot of course be assessed on any
logical basis: the assessment must be largely arbitrary
and must
depend upon the trial Judge's impression of the case."(my
emphasis)
VIII.
ANALYSIS
[38]
Quantifying a claim for a diminished capacity to earn, the actuarial
calculation is based
on the realistic assumptions by the experts
regarding the future, made reliant upon actual facts and the sequelae
of the injuries
as proven (or to be proven). Actual facts are
therefore crucial if the conjectures and recommendations made by the
experts including
the actuary are to be fair and just.
[39]
In
casu
, all having been considered, the report of termination
of Plaintiff’s employment from October 2019 to December 2019
due to
him no longer meeting the physical requirements of the job and
of not being remunerated during that period should not be regarded
as
a loss, as there is neither a document nor any evidence attested to,
authenticating those allegations. The Actuary in his calculations
regarded that to be a past loss of earnings suffered. Past loss is
actual loss and is to be properly proven with no justification
to be
speculated. It is of concern that the employer who is the driver of
the vehicle in which the Plaintiff was a passenger at
the time of the
accident, Plaintiff’s uncle and husband to Plaintiff caregiver
was not asked to provide proof or a written
statement under oath on
Plaintiff’s alleged period of unemployment and loss. The
exercise must at all costs not be allowed
to seem to be all
fictional, which might end up not being fair and just to the other
party.
[40]
Despite having been involved in an accident three months earlier and
still recuperating,
it is reported that on his employment the
Plaintiff successfully underwent training. If the job entails what
was referred to by
Marin standing and going up and down the stairs,
the training clearly posed physical and mental challenges requiring
the same endurance
and performance as the work to be performed in
that position, which he overcame. In that case the fact that after
training (which
happened soon after the accident) his services were
retained, disturbs the narrative of underperformance long after
sustaining
the injuries that could have gravely impacted on his
performance employment.
[41]
It is also unlikely that notwithstanding being regarded to be unfit
for the job’s
physical requirements, the Plaintiff was in
January 2020 offered the same position, under the same capacity,
conditions and remuneration
in which he continues to be employed to
date, except for confirming that in the work context his employment
is sympathetic and
accommodative. The employer who is the uncle and
driver could have attested to all that or submitted documentation in
that regard
for verification. The Plaintiff himself seems not to have
said anything about being laid off. I am therefore not satisfied with
the reporting by Rennie on this issue. It is however noted that
Plaintiff confirmed being allowed to sit when he experiences too
much
pain. The contingency for his possible un-employability as a
semi=skilled job seeker based on the evidence that the plaintiff
lost
his job for the three months and was employed again to the same job
in the same capacity and salary are therefore to be high.
[42]
Furthermore, on the past loss of earnings there is no evidence of
pre-accident employment
since the plaintiff was a learner and not
earning any income. The plaintiff's pre-injury earnings are therefore
assumed to be zero.
[43]
On the post morbid loss, what needs to be considered is what will
possibly prejudice and
limit his employment opportunities in terms of
the type of work, work environment and employer potential. Arm, the
Occupational
therapist reported that Plaintiff maintains the ability
to meet the demands of the medium work after assessing his dynamic
strength,
having lost moderate amenities of life. Plaintiff having
reported pain and decreased right ankle weight endurance and
increased
right limping gait, she pointed out that he will struggle
with any activity that requires the handling of heavier loads beyond
10kg, experiencing pain and discomfort. His productivity will
decrease even though it might have at some stage increased with the
recommended treatment, due to the degeneration in his ankle joint
that might progress to end-stage osteoarthritis. In the consideration
of contingencies to be applied an allowance should therefore be made
for an increase in the patient’s productivity with the
recommended treatment which is rather not permanent as well as the
setting in of the degeneration that will supposedly result in
the
decrease in his productivity requiring an extensive reasonable
accommodation from employer.
[44]
Marin had however further opined that from a physical perspective it
appears
the injuries Plaintiff sustained and the sequelae thereof had
a restrictive impact on his functioning when compared to previous
levels of functioning. There is no information regarding previous
level of functioning but the Plaintiff revealed to Marin that
he had
previous rugby injuries on the right lower leg, but as to what impact
they had on his quality of life prior to the accident,
it was not
specified. The previous rugby injury was also reported to Rennie. The
uncertain scenario is a factor for consideration
on the contingency
to be allowed. Additionally, existence of previous injuries on his
left arm noted on the x-ray report, said
to may have caused a mild
cortical irregularity at the lateral aspect of the distal left radius
as well as a small osteophyte or
osseous fragment, that according to
Arm, Plaintiff reported no pain experience on his left wrist.
[45]
The Plaintiff’s psychological and emotional difficulties were
identified as likely
to impact on interpersonal relationships in the
work context, and on his ability to retain employment in the long
term in the labour
market. He was therefore said to likely experience
extended periods of unemployment. His future employment was therefore
regarded
as curtailed as a result of the injuries. The significance
of factors unrelated to the accident reported to have also
contributed
to the despondency of the Plaintiff, should be noted, for
which contingency allowance should be made. Specially the traumatic
experience
of his parent’s divorce whereupon he was separated
from them to go and stay with his aunt and uncle, one and a half
years
before the accident, with no therapy or counselling provided
for the trauma. It means he may have presented with pre-existing
psycho-emotional
difficulties most likely to have been exacerbated by
the accident.
[46]
On the Defendant’s submissions that on his education it should
be taken
into account his family’s educational background, none
of them is certificated beyond Matric, except for the father who has
a fitter and turner certificate. The parents were reported to Du
Plessis on date of assessment on 23 July 2019 to be both employed,
the father as a Fitter and Turner. However, on the same date
Plaintiff reported to Grootboom that his father, a boiler maker, was
unemployed. His mother whose highest education level was reported to
be a Grade 12 in other reports Plaintiff reported to Grootboom
to be
Grade 11. On 15 March 2019 he told Rennie his father’s
occupation was unknown. It is therefore reasonable to expect
him not
to have gone beyond Grade 12 as argued.
[47]
Having taken into account all the
sequelae
and all the other
realistic consequent effect on the future employability of the
Plaintiff including the abovementioned concerns,
it is evident that
he would likely be affected on the semi- skilled open labour market,
as an unequal competitor who is to be accommodated
in a light duty
and sedentary working environment, albeit slightly having acquired
technical skills in his present employment,
not much different from
his premorbid potential. The chances of premature retirement being
moderate, also early retirement a possibility
not a given. Even
though the shown resilience and experience might improve his chances
to gain future employment despite the discomfort
of pain, I also take
note of the high unemployment rate in South Africa as a serious
factor that nothing is guaranteed.
[48]
Whether contingencies should be applied, and in what percentage, is
directly linked with
the amount that a court considers just in
respect of compensation. Having regard to all the circumstances of
this matter in my
view it would be just and fair that a contingency
factor be applied on the calculations by Sauer, in respect of post -
accident
future loss of income be lowered as recommended, however to
a percentage of 30 % and on the pre morbid increased to 35%.
[49]
I therefore conclude that applying such contingencies the amount of
R2 218 615.80 would
therefore be a fair and reasonable amount to be
awarded for the total loss of future earnings.
[50]
In the result the following order is made:
1.
The Defendant is to pay a sum of R2 218 615.00 (Two Million
Two
Hundrend and Eighteen Thousand, Six Hundrend and Fifteen Rand) for
the Plaintiff‘s future loss of earnings.
2.
The Draft Order marked X is incorporated into this order and
made an
order of court.
N V KHUMALO
JUDGE OF THE HIGH COURT OF SA
GAUTENG DIVISION, PRETORIA
For
the Plaintiff: ADV K STRYDOM
Instructed
by: Nel Van der
Merwe Smalman Inc
Ref: WN3507/ R Steenkamp Email:
stefanie@nvsinc.co.za
For
the Defendant: Adv NELUONDE
MAC
NDHLOVU INC
Ref: Mr Letsoalo/SS/RAF3075 Email:
admin6@macndhlovu.com