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[2021] ZAGPPHC 317
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Mnguni v Road Accident Fund (65618/2017) [2021] ZAGPPHC 317 (12 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 65618/2017
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED.
DATE:12/05/21
In
the matter between:
LYDIA
ZANELE MNGUNI
Plaintiff
and
THE ROAD
ACCIDENT FUND
Defendant
JUDGMENT
The judgment and order
are accordingly published and distributed electronically. The date
and time of hand down is deemed to be
10:00 on 12 May 2021.
TEFFO,
J:
Introduction
[1]
On 30 January 2016 the plaintiff, an adult female
who was 26 years
old at the time, was involved in a motor vehicle accident. She seeks
compensation from the defendant for damages
suffered as a result of
the injuries sustained in the collision.
[2] The
issue of liability has been settled at 100% in favour of the
plaintiff. The defendant has agreed to compensate
the plaintiff for
future medical and hospital expenses by furnishing a section 17(4)(a)
undertaking in terms of Act 56 of 1996.
General damages have been
referred to the Health Professions Council of South Africa (HPCSA)
for determination. The issue thereof
has been postponed
sine die.
[3]
The head of damages for determination is the plaintiff’s
claim
for future loss of earnings or loss of earning capacity.
[4]
No oral evidence was led. The case was presented
on the basis of the
experts’ medico-legal reports filed.
[5]
The plaintiff has filed the following medico-legal
reports: Dr T
Enslin (Serious Injury Assessor); Dr H B Enslin (Orthopaedic
Surgeon); Alison Crosbie (Occupational Therapist); Dr
G Marus
(Neurosurgeon); Dr M Mazabow (Neuropsychologist); Dr D Shevel
(Psychiatrist); Sunette van den Heever (Educational Psychologist);
Anthony Townsend (Clinical Psychologist); Dr J Watts (Clinical
Psychologist); Dr L Berkowitz (Plastic and Reconstructive Surgeon);
Dr R Blumenfeld (Ophthalmologist), Louis Linde (Industrial
Psychologist); Algorithm Consulting CC (Actuaries).
[6]
The defendant has filed the following reports:
Dr Khumalo
(Orthopaedic Surgeon); RAF 4 form - Dr Khumalo; Dr Ntimbane
(Neurosurgeon).
[7]
All the plaintiff’s experts save for
Anthony Townsend (Clinical
Psychologist) have also filed affidavits confirming the correctness
of the contents of their reports
in respect of their factual
findings, their opinions and the reasons thereof. They have also
attached copies of their
curriculum vitae.
There was no
appearance on behalf of the defendant. The reports filed by the
defendant were not accompanied by the experts’
affidavits
confirming the correctness of their contents and the copies of their
curriculum vitae.
[8]
The RAF Form 1 completed by Dr Ramonyadiwa
at Mamelodi Hospital was
also filed.
[9]
No hospital records have been filed. No joint minutes
have been
filed.
[10] The
notice of set down was served on the defendant. There
were
engagements between the plaintiff’s attorneys and the defendant
and the matter could not be resolved. The trial proceeded
in the
absence of the defendant.
[11]
Further documents filed in the quantum bundle were: payslips
from the
plaintiff’s employer, Jaco Roos Attorneys dated 30 June 2015 to
July 2016 and from 30 June 2019 to 30 April 2020;
Certificate of
Service;
curriculum vitae;
school reports; matric
certificate; academic record obtained from the University of South
Africa (Unisa) dated 28 August 2018, 18
October 2018 and 9 January
2020 and academic results obtained from Unisa; photographs depicting
the injuries the plaintiff sustained
in the accident and an X-ray
report compiled by Bergman, Roos and Partners Radiologists.
The injuries
[12]
The RAF Form 1 completed by Dr Ramonyadiwa at Mamelodi Hospital
states that on 31 January 2016 the plaintiff was seen in casualty.
X-rays were done on the abdomen, chest and cervical spine.
Assessment: Soft tissue injury secondary to motor vehicle accident.
No fractures on X-rays . She was discharged on 31 January 2016
with
analgesia.
[13]
Dr H B Enslin, the plaintiff’s orthopaedic surgeon states
in
his report that according to the information provided by the patient,
and/or the documentation received and/or clinical findings
and
radiographic studies, Ms Mnguni sustained the following orthopaedic
injuries: Bruising over her left shoulder; bruising over
her chest,
which was painful for two weeks and an injury to her cervical spine.
She was taken to Mamelodi Hospital where she was
evaluated ,
stabilised and admitted for one day. X-rays were processed. She was
treated conservatively . A neck collar was fitted
for one week. Her
neck was painful for two days whereafter she removed the collar.
[14]
On clinical examination on 29 March 2018 he found the following:
a
small scar measuring 2,2 cm x 1 cm over the left shoulder with keloid
formulation.
[15]
Dr H B Enslin further states that according to the hospital notes,
Ms
Nguni was awake when she was evaluated at Mamelodi Hospital. She has
completely recovered from her injury to her neck and chest.
She has
intermittent pain in her left shoulder and a minor scar over the left
shoulder, which is not of cosmetic significance.
She uses rubbing
lotion on her left shoulder once a month. There are no radiological
signs of damage to the left shoulder. He believes
that Ms Mnguni has
minor subacromial bursitis related to the accident. Ms
Mnguni has reached Maximum Medical Improvement.
Her disability for
her present work, namely filing and cleaning is assessed at 10%.
[16]
According to Dr H B Enslin, Ms Mnguni should be able to continue
with
her present work until she reaches her normal age of retirement. She
has passed matric and she is computer literate. He was
unable to
state that the plaintiff will become disabled for work due to the
intermittent pain in her left shoulder. He deferred
to a clinical
psychologist for an evaluation of the plaintiff’s actual
disability and impairment related to her Post-Traumatic
Stress
Disorder and depression. The plaintiff sustained soft tissue injuries
and serious complications have not occurred.
[17]
The plaintiff was evaluated by Dr T J Enslin for completion
of the
RAF 4 Form on 7 March 2017. Dr T J Enslin found that she had 10%
whole person impairment which related to psychological
symptoms
following the accident. She has loss of memory and a Post-Traumatic
Stress Disorder which was included in the causation
of her depressed
mood. Her sister and her sister's daughter were fatally injured in
the accident, which she found very traumatic
.Dr T J Enslin mentioned
scarring on the left shoulder. He qualified her for an award for
general damages under the Narrative Test.
His view was that Ms Mnguni
should be evaluated by a clinical psychologist for treatment of her
Post-Traumatic Stress Disorder
and depression.
[18]
Dr G Marus, the plaintiff’s Neurosurgeon , who saw the
plaintiff on 4 April 2019 concluded that she sustained a mild to
moderate concussive brain injury. He further stated that the outcome
after this severity and type of brain injury is variable , some
patients can retain some cognitive related symptoms in the longer
term.
[19]
Dr J A Ntimbani, the defendant’s Neurosurgeon
agrees that the
plaintiff sustained a mild head injury (concussion) .
[20]
On 23 August 2018 the plaintiff was assessed by Dr M
Mazabow, a
Neuropsychologist. The plaintiff reported to him that she does not
recall the accident. The accident happened on 30
January 2016 at
approximately 17:00/17:30. Her last memory before the accident was of
approaching a stop sign which would
have been a few seconds
before the impact. She did not recall being at the scene of the
accident nor being transported to the hospital.
She did not recall
being at the hospital and being discharged approximately 14 hours
post-accident. She also did not recall arriving
home at her sister's
house thereafter. Her first post-accident memory was of finding
herself in her sister’s house and being
told to bath, prior to
travelling by taxi to her workplace in order to complete certain
forms.
[21]
She mentioned that she was disorientated and did not
know what was
happening around her at the time. Her sister reported that that
happened on Monday at approximately 07:00, some 40
hours
post-accident. The plaintiff recalled being taken to a private doctor
later on the same day and her memory was continuous
subsequent
thereto. This, according to him, indicates a period of dense/total
post-traumatic amnesia of nearly 40 hours.
[22]
The plaintiff’s sister reported that she saw her at
approximately
19:00 on the night of the accident, two hours
post-accident. The plaintiff did not recognise her and did not know
her name. She
did not understand that she was involved in an
accident. However, she was complaining about the pain on her
left shoulder.
She was discharged the following morning, 16 hours
post-accident. Her sister reported that she slept a lot a few days
following
her discharge from the hospital. She was quiet, confused
and traumatised. She was only informed about her sister's death and
her
child four days after the accident.
[23]
Dr Mazabow notes that the casualty
notes have not been available. The
hospital records from 30 January 2016 at 21:40 (four hours post
accident) state that the
plaintiff was received from day staff and
was fully conscious, but was “
having an episode of
confusion”.
The neuropsychologist remarked that the
statement is contradictory in that the episode of confusion would
preclude full consciousness.
It was further recorded that she was
complaining of body pains. There were no further clinical or nursing
notes present save for
a note from 23:10 which gives a diagnosis of a
soft tissue injury with no fractures identified on X-ray and the
plaintiff was said
to be discharged.
[24]
The neuropsychologist further states that the plaintiff returned
to
work at Jaco Roos Attorneys two weeks after the accident. She resumed
her duties as a general worker with cleaning and filing
duties.
However, she reported that at that time she fatigued rapidly, had
pain on her left arm/shoulder when reaching for documents
and files
and had poor concentration with consequent errors. She stated that
she received no complaints as her employer was sympathetic
to her
circumstances. She says her difficulties improved during the course
of 2016. She had no problems in 2017 and has had
no problems at
work in 2018 thus far. She says she becomes tired easily when
carrying out cleaning duties. She is short-tempered
in relation to
her colleagues at work. Dr Mazabow recommended that the plaintiff’s
level of work functioning should be investigated
by an industrial
psychologist.
[25]
With regard to her studies, the plaintiff reported that she began
to
study for a BA degree in Psychology through Unisa via correspondence
in 2017. She had to spend high levels of effort and time
studying
because she tends to become fatigued easily when studying. However,
she said she performed very well in her studies passing
all the
modules in both semesters. At the time of the assessment she was in
her second year of her studies and her performance
was still good.
[26]
The plaintiff reported that she has become forgetful. She thinks
that
is only in the last few months, since she became pregnant and denied
any problems previously. Her sister was not aware of
her memory
problem. Her concentration was very poor in the initial period
following the accident but it has improved over time.
However, she
says her fatigability at work and while studying affect her
concentration requiring her to spend more time and effort
on the
task. She further reported that she had been prone to episodes of
sadness since the accident, and she attributes this to
her ongoing
grief about the deaths of her sister and her 13 years old niece in
the accident. She was intensely depressed in the
period following the
accident and underwent counselling with a social worker, but for only
one session. She continues to become
sad when thinking about these
losses. The test conducted at evaluation (Beck’s Depression
Inventory (BDl-11) revealed a score
of 26 which is the average range
of depression. On this inventory the plaintiff reported anhendonis
(reduced capacity to experience
pleasure), guilt and expectation of
punishment, tearfulness, a feeling of restlessness lowered energy,
decreased need for sleep,
irritability, appetite disturbance,
fatigue, distractibility and reduced sexual interest. She further
reported that she is fearful
when travelling in motor vehicles,
especially in buses and that has been confirmed by her sister. She
has no other post-traumatic
anxiety symptoms.
[27]
Dr Mazabow opined that in the absence of an incidental/unrelated
neurological disorder, Ms Mnguni’s current neurocognitive
profile (which includes areas of significant impairment, together
with several preserved cognitive functions), and her reported
behavioural changes, would be attributed predominantly to a moderate
diffuse concussive brain injury sustained in the accident, compounded
by a chronic, moderate mood disorder. His prognosis
was that at
more than 2½ years post-accident, the plaintiff’s
neuropsychological status is permanent.
[28]
As regards the plaintiff’s academic performance, the
neuropsychologist
said the following:
“
6.2.3 If her
performance
has
indeed
been
good
during
2017
and
2018, then the indication would be that her level of compensation has
been fairly successful thus far (at least at the level
of
undergraduate correspondence studies). However, given her areas of
cognitive impairment evident on testing, Ms Mnguni is not
likely to
manage to perform optimally at the higher
levels of
study required for qualification in this field (in particular at
Honours and Master’s level studies) and she may
also struggle
with the 3rd year level subjects which makes greater demands on
aspects that are impaired (including concept formation,
planning,
rote verbal memory). Further comment in that regard would be useful
from an educational psychologist.”
[29]
The plaintiff was also assessed by Ms Sunette van den Heever, the
Educational Psychologist who saw her on 16 April 2019. Her report
states that the plaintiff successfully completed Grade 1 to 12
without repeating any grades. Having perused the school report for
Grade 6 attached to her report, she states that the plaintiff
seems
to have been an average to a high average learner. She matriculated
in 2007 and obtained an endorsement for admission
to a
Bachelor’s degree. Her marks were between 50 to 59 percentage
for English, Economics, Business Economics, 60 to 69 percent
in
Ndebele and Accounting and between 40 and 40 for Biology.
[30]
In 2012 she enrolled for an International Computer Driver License
at
the ICDL South Africa which she completed. She aspired to become a
Social Worker. However, she was required to complete a bridging
course in order to improve her matric results and obtain a higher
M-score before she was allowed to register for a Bachelor of
Social
Work. She enrolled for an extended programme for degree studies at
Unisa in the second half of 2013. She passed English
Proficiency for
university studies with 50 percent and Introduction to Law for Social
Work 11B with 58 percent, however, she failed
English for Academic
Purposes and Introduction to Law for Social Work 11A with 24 and 34
percent.
[31]
In 2014 she repeated English for Academic Purposes but failed in
May
and October. She managed to pass Introduction to Law for Social Work
11A in May 2014 with 59 percent. In 2015 she managed to
pass English
for Academic Purposes with 50 percent and successfully completed the
course. The Educational Psychologist mentions
that the plaintiff
informed her that she was informed that she would be allowed to
register for a Bachelor of Social Work. Attempts
to confirm the
information were not successful at the time of writing the report.
[32]
The accident happened in January 2016. She was unable to resume
her
further studies in 2016.
[33]
In 2017 she enrolled for a Bachelor of Arts (Health Sciences and
Social Services) degree at Unisa on a part-time basis while working
as a cleaner and filing clerk. She enrolled for eight modules
and
passed 7 of them with marks ranging from 50 to 75 percent. This
excludes her failure in Personality Theories and supplementary
examination for Critical Reasoning which were 32 and 41 percent
respectively. In 2018 she enrolled for the first year subject which
she had failed and nine other second year modules. She passed the
first year subject with 55 percent and seven second year modules
obtaining two distinctions. However, she failed Foundations of
English Literacy and made it into the supplementary examinations
for
Research in Social Sciences 2019. In 2019 she rewrote the
supplementary exam but failed. In 2019 she enrolled for four third
year modules and obtained the following results: 50 percent, 61
percent, 53 and 55 percent.
[34]
She indicated to her in a telephonic conversation in March 2020
that
she had eight modules outstanding . She registered for five modules
and would register the next three modules in the second
semester of
2020. She has until 2022 to complete her degree.
[35]
Her work history was that after completion of her matric, she worked
as a waitress at Villa Paulo Restaurant in 2009. In 2011 she accepted
a position at Jaco Roos Attorneys as a cleaner and filing
clerk. She
is still employed in that capacity.
[36]
The above information is at variance with the information that is
on
the Certificate of Service that forms part of the record. In the
Certificate of Service it is stated that the plaintiff was
employed
on 5 January 2011 as a domestic worker initially and at date of
accident she was still employed as a domestic worker.
She works five
days per week at eight hours per day and earns a salary of R2 720,00
per month. The Certificate is not completed
in full. There is no
indication as to when she resumed her duties after the accident. It
has not been signed and stamped. The name
of the employer has also
not been completed save for the address. It is not known when the
certificate was completed and by who.
[37]
The plaintiff’s
curriculum vitae
has also been attached.
She states in her
CV
that she works as a filing clerk/cleaner
at Jaco Roos Attorneys. On Monday, Wednesday and Friday she does
cleaning work. On Tuesday
she does cleaning at Lize-Marie Roos and on
Thursday she does filing for Mariza Labuschagne.
[38]
With the above information in mind the educational psychologist
concluded that in terms of her pre-morbid educability and considering
all available information as well as her perseverance and
determination to complete her tertiary studies despite her
challenges, the plaintiff would have had the cognitive and academic
potential to complete a Bachelor of Social Work degree as aspired to
do. This would have allowed her career opportunities as a
social
worker and she would have obtained a NQF 8 level qualification.
[39]
Post-morbidly she managed to pass her first and second year
of
studies for the Bachelor of Arts in Health Sciences and Social
Services degree she enrolled but a decline in performance is
noted in
her third year. In light of this together with her cognitive profile
and her emotional vulnerabilities and distress, in
the absence of any
psychological intervention her ability to cope within her academic
environment is declining and is affecting
her cognitive functioning.
While she may manage to complete the degree course she enrolled for
if given the necessary interventions,
it is evident that she now has
to exert a greater amount of effort and has experienced a delay In
completing her studies.
[40]
Ms Sunette van den Heever is of the view that available information
suggest
that the plaintiff’s academic career has been
significantly compromised by the accident. She did not enrol for a
Bachelor
of Social Work (NQF 8) degree and instead registered for a
BA Health Sciences and Social Services degree which is a NQF 7 level
and less demanding in terms of academic challenges. Her ultimate
career prospects were also negatively affected and deference is
given
to the findings of the industrial psychologist.
[41]
Ms Van den Heever also referred to the feedback of the plaintiff’s
employer that suggests a deadline in the quality of her work and a
decrease in her functionality. The fact that she displays an
aloof
attitude towards her expectations and surrounding people at work.
Further that she has an attitude which causes friction
at work as she
does not concentrate and is prone to errors.
[42]
In the educational psychologist’s opinion if the plaintiff’s
emotional problems are left unaddressed, the likelihood of completing
her studies will decline leaving her with an NQF 4 qualification.
At
the age of 29 years old, the plaintiff will probably not enrol for
further studies and her cognitive difficulties will continue
to
interfere with the academic progression prohibiting any advancement
in educability.
[43]
The opinion of the educational psychologist which will ultimately
together
with the opinions of other experts inform the opinion of the
industrial psychologist, is not consistent with the educational
information
provided. Although the plaintiff obtained an aggregate
symbol that enabled her to register at a university, she passed
Biology
which she registered in standard grade with an E symbol. Her
June 2007 school report shows that her English and Biology marks were
relatively low with 35 and 25 percent compared to the other subjects
which ranged from 52 to 62 percent. I must say that the plaintiff
has been selective in providing information relating to her
performance at school. The only progress reports
provided are for Grade 6 and Grade 12. All we know is that she was in
Grade 6 in 2001 and in Grade 12 in 2007. She never failed
any grade
in high school. There is no proof of her performance in the other
grades.
[44]
In 2013 she enrolled for an extended programme for a university
degree to improve her marks to qualify her for enrolment for a
Bachelor of Social Work degree. These extended programmes are
normally
done in one year. The plaintiff failed some modules in 2013
and 2014 and only completed the programme in 2015. It is significant
to underscore the fact that this was a bridging course. All this
happened prior to the accident. The plaintiff aspired to study
for a
Bachelor of Social Work degree.
[45]
Post-accident the plaintiff enrolled for a BA degree in Health
Sciences and Social Services which the educational psychologist
regards as less challenging academically than the Bachelor of Social
Work degree. This assertion is moot. Although it can be said that she
did well in her studies in 2017 and 2018 passing certain
modules with
distinctions, this was not a smooth journey as she had to repeat one
to two courses and this pattern continued in
the third year. Having
regard to her academic progress pre- accident, it cannot be concluded
that her decline in her academic
performance in her third
year of study was related to the accident. This pattern existed
pre-accident. It attests to a fairly
average student.
[46]
Ms Franja Burger, an Occupational Therapist at Alison Crosbie Inc
(the plaintiff’s occupational therapist) states in her report
that the plaintiff is employed at Jaco Roos Attorneys where
she
started in 2011 as a cleaner. In 2017 she started to do filing. This
information contradicts the information recorded in other
experts’
reports which says the plaintiff was employed as a cleaner and filing
clerk with effect from 2011. See the report
of the neuropsychologist.
Furthermore, it also contradicts the information provided on
the Certificate of Employment which
states that she has been employed
as a domestic worker and the information on her
CV
as
discussed above.
[47]
In Ms Burger’s opinion, the plaintiff’s pre- and
post-accident work as a cleaner/filing clerk falls within the light
work category. According to the assessment results, her lifting
ability tested to fall within the light work category. Her lifting
ability was influenced by the left shoulder injury which resulted
in
lost of control and asymmetrical handling of the load with minimal
increase in weight. From a lifting point of view only, the
plaintiff
should be able to continue with her pre-accident work as a cleaner
and filing clerk. However, her productivity will be
reduced and she
will require reasonable accommodation and also receive physiotherapy.
[48]
The occupational therapist agrees with Dr Mazabow’s
opinion
that the plaintiff will most likely struggle to complete the
psychology degree taking into consideration her fatigue and
neurocognitive deficits. In her view the plaintiff should have career
counselling in order to receive guidance to consider alternative
qualifications such as shorter and more practical diploma courses
that are still related to counselling within the field of psychology.
She has a residual work capacity that is at a lower level than her
capacity pre-accident. She requires reasonable accommodation
in the
workplace due to the injury to her left shoulder and her employer
would have to be sympathetic with regards to her neurocognitive
deficits, executive dysfunction and psychological deficits.
[49]
Ms Burger’s opinion is that the plaintiff has psychological
fallout
as a result of the accident. This will affect her motivation
and drive should she pursue a career with high demands on
productivity
and efficiency. The occupational therapist deferred to
the industrial psychologist for further comment on her pre- and
post-accident
earning capacity.
[50]
Dr J A Watts (the plaintiff’s Clinical Psychologist) who saw
the
plaintiff on 29 June 2020 and whose report is dated 18 July 2020
is of the opinion that but for the accident the plaintiff would
have
continued to enjoy the same quality of occupational, familial, social
and recreational fulfilment as characterised by her
pre-morbid
functioning. Her pre-morbid history suggests good-enough engagement
with these dimensions of her personal worlds. There
were no
psychological indices to suggest that her future functioning within
these dimensions was at risk. As a result of the accident,
the
plaintiff was injured. She sustained a diffuse concussive head
injury. She suffered from bereavement due to the deaths of her
sister
and niece. The head injury exacerbated her psychic fragility, leading
to a complicated bereavement. She lacks the cognitive
capacities to
process her bereavement. The death of her father further contributed
to exacerbate her bereavement. She developed
a Major Depressive
Episode which became chronic and she suffers chronic pain.
[51]
Dr Leslie Berkowitz, Plastic and Reconstructive Surgeon noted that
the plaintiff sustained an impact injury to the left shoulder with
associated overlying lacerations and a soft tissue injury of
the
neck. She has scars on the left shoulder, two superficial scars
extending distally from the distal end of scar 1 and one lying
proximal to scar 1. She will require surgical revision for scar 1.
She has reached Maximum Medical Improvement and has been left
with
serious permanent disfigurement of her left shoulder as a result of
the accident.
[52]
The plaintiff’s psychiatrist, Dr Shevel also evaluated her
and
reported as follows:
“
7.23
From
the
information
available,
the
history
obtained
from
Ms Mnguni
and
her
mental
state
at
the
time
of
examination, the psychiatric
diagnosis
is most likely as follows:
7.23.1 Complicated
bereavement with associated depressive features (currently largely in
remission) and complicated by a concussive
head injury.”
[53]
Messrs Linde & Jooste (the plaintiff’s Industrial
Psychologists)
stated the basis for calculation of the plaintiff’s
loss of earnings as follows:
“
9
Loss of earnings
Ms Mnguni has suffered
a potential future loss of earnings and earning potential as a result
of the accident in question. But for
the accident Ms Mnguni would
have continued working as a cleaner/filing clerk as she had
pre-accident, earning R2 700,00 per month
in 2016 terms.
She would additionally
have started studying towards her degree in 2016 on a part-time basis
had the accident not occurred. Five
years should be allowed for
studies, therefore Ms Mnguni would have entered the open labour
market in 2021 as a Social Worker.
With a degree in
social work, Ms Mnguni would have been able to enter the position of
Social Worker Grade 1, progressing to the
positions of Social Worker
Grades 2 and 3. By the age of 40
to 45 years, following
the straight line approach. Ms Mnguni would have reached the position
of Social Worker Supervisor Grade 1.
After a further five years she
would have reached her career ceiling in the position of Social
Worker Supervisor Grade
2.
For the purposes of quantification,
the applicable salary information as per Appendix D to DPSA Circular
10 of 2019, OSD for Social
Services Professions: 1 April 2019, are
provided
in the loss of earnings below. Ms Mnguni would
have received notch and salary inflationary increases until her
retirement at the
age of 65 years
.. .
Now, as a result of
the accident, Ms Mnguni’s academic studies were delayed and she
therefore has suffered a delay in entrance
in the open labour market.
The present writers
are of the view that
a
position
as a
Social Auxillary
Worker would probably suit Ms Mnguni well and provide her with
a
sense of purpose. She will be able to apply for this position with
either qualification once she secures
a
learnership as
a
Social Auxillary Worker Grade 1. In this position she will
be able to progress from a grade 1 to
a
grade 3 position with
her earnings increasing proportionally with notch and level increases
as reported in loss of earnings below.
It is foreseen that she will
probably apply for
a
learnership position in 2022.”
[54]
The plaintiff’s industrial psychologist had sight of
all the
plaintiff’s expert reports. As I had alluded to above the
occupational therapist in her report stated that the plaintiff
started working at Jaco Roos Attorneys as a cleaner in 2011. From
2017 (post-accident) she worked as a filing clerk. If the information
is correct, the plaintiff only worked as a cleaner pre-accident. This
information should also be read with the information referred
to
above as recorded in the plaintiff’s CV and her Certificate of
Employment which contradicts the information that she worked
at Jaco
Roos Attorneys as a cleaner/filing clerk.
[55]
Furthermore, as I had highlighted above, there is no proof
that the
plaintiff was accepted for enrolment of a Bachelor of Social Work.
The plaintiff aspired to become a Social Worker. However,
she did not
qualify hence she had to enrol for the extended programme. There is
no evidence that in 2016 she would have been
allowed to
register for a BA degree in Social Work had the accident not
occurred. There is therefore no basis in my view to form
an opinion
that the plaintiff would have been able to obtain an NQF 8
qualification which would qualify her as a Social Worker
pre-accident. A delay of a year in her studies following the accident
is not in dispute.
[56]
The Actuaries, Algorithm Consultants calculated the plaintiff’s
loss of earnings on the basis of the opinion of the plaintiff’s
industrial psychologists. It was submitted that basis 2 resulting
in
a total future loss of earnings in an amount of R4 739 003,00 would
fairly and reasonably compensate the plaintiff.
[57]
Having regard to the serious concerns I raised in this matter, I
find
that the opinions of the plaintiff’s experts are at variance
with evidence presented by the plaintiff. It follows that
the
plaintiff has not proved her case for future loss of earnings.
Cost
[58]
There is no basis to deprive the specified plaintiff’s experts
of their costs. They performed their work and produced their reports
in accordance with their instructions.
[59]
In the result the following
order is made:
1.
Absolution from the instance is granted in respect of the plaintiff's
claim for future loss of earnings.
2. The
defendant is ordered to, on or before 31 May 2021, provide the
plaintiff with a written undertaking in terms
of
section 17(4)(a)
of
the
Road Accident Fund Act, 56 of 1996
, 100% for the costs of the
future accommodation of the plaintiff, in a hospital or nursing home
or treatment of or rendering of
a service to her or supplying of
goods to her arising out of the injuries sustained by her in the
motor vehicle collision that
occurred on the 30th day of January
2016, in terms of which undertaking the defendant is obliged to
compensate the plaintiff in
respect of the said costs after the costs
have been incurred and upon proof thereof.
3. The
reasonable fees of the following experts will be paid directly by the
RAF to such experts: Dr T Enslin; Dr H
B Enslin; Alison Crosbie; Dr G
Marus; Dr M Mazabow; Dr D A Shevel; Anthony Townsend; Dr J Watts; Dr
L Berkowitz, Sunette van der
Heever; Dr R Blumenfeld; Louis Linde and
Algorithm.
M J TEFFO
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION,
PRETORIA
Townsend;
Dr J Watts; Dr L Berkowitz, Sunette van der Heever; Dr R Blumenfeld;
Louis Linde and Algorithm.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances
For the
plaintiff
M Fourie
Instructed
by
Jaco Roos Attorneys
Inc
For the defendant
No appearance
Date
heard
13
November 2020
Date
handed down 12 May 2021