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[2021] ZAGPPHC 346
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Sekhwela v Road Accident Fund (61405/13) [2021] ZAGPPHC 346 (28 May 2021)
FLYNOTES:
LOSS OF INCOME – SYMPATHETIC EMPLOYMENT
ACTUARIAL
– Loss of income – Sympathetic employment –
Employed as bookkeeper in company run by daughter
– Pain
causing reduced working hours – Salary not reduced –
Not receiving annual increases and expected
to retire earlier due
to injuries – Injuries impacting earning capacity and
actuary using lower post-accident income
– 5% contingency
for past loss and 12,5% contingency for future loss.
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case
No: 61405/13
In the matter between:
SEKHWELA
BRAYNT SEFISO
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
SK HASSIM AJ
[1]
This is an action for compensation for bodily injuries
sustained by the plaintiff in a motor vehicle collision on
15
July 2012
when a motor vehicle driven by the insured driver
collided with the plaintiff, a pedestrian.
[2]
After several unsuccessful attempts by the
plaintiff’s legal representative to contact the claims’
handler, which at
the very latest started on 23 June 2020, counsel
informed me that there had been regular telephonic contact with her
the day before
the hearing commenced. Notwithstanding this,
there was no appearance for the Road Accident Fund (“
the
Fund
”).
The plaintiff’s
experts’ reports
[3]
Educational psychologists
:
3.1.
A report dated 17 August 2017 prepared by
Ms Sepenyane (“
the 2017
Educational Psychologist report
”).
3.2.
A report dated 27 August 2019 (erroneously
dated 2018) prepared by Ms F Masipa (“
the
2019 Educational Psychologist report”)
.
[4]
Industrial psychologists
:
4.1.
An undated report prepared on the
letterhead of “
Rixile Consulting
Industrial & Counselling Psychologist
”
and signed by Ms Nadira Mohamed. This report followed an
assessment conducted on 11 November 2015. The filing
notice to
which the report is attached was signed on 18 August 2017 (“
the
2017 IP report
”).
4.2.
A report dated 27 August 2019 prepared by
Mr Vuyani Muleya which followed an assessment conducted on 22 August
2019 (“
the 2019 IP report
”).
[5]
Actuaries
:
5.1.
A report dated 18 August 2017 signed by
Charl du Plessis and Jacqualine Swan from Munro Forensic Actuaries
(“
the August 2017 Actuarial
report
”
)
.
5.2.
A
report dated 22 September 2017 signed by Charl du Plessis and
Jacqualine Swan from Munro Forensic Actuaries” (“
the
September 2017 Actuarial report
”
)
.
This report is described on the filing sheet to which it is attached
as “Joint-Calculations.
[1]
I
t
is based on the joint minute of the Industrial Psychologists, Ms
Mohamed and Ms Cilliers dated 31 August 2017.
5.3.
A report dated 4 September 2019 signed by
Charl du Plessis and Eddie Theron from Munro Forensic Actuaries (“
the
September 2019 Actuarial report
”
)
.
[6]
Neurosurgeon, Dr Tshepo P Moja, whose
report is dated 25 October 2016.
[7]
General
practitioner, Dr Chewane
[2]
who
signed the RAF 1 form on 15 April 2013.
[8]
Plastic and Reconstructive Surgeon, Dr
Selahle whose report is dated 26 February 2015.
[9]
Occupational therapist, SD Mogola whose
report is dated 22 August 2019 (“
the
2019 OT report
”
)
.
Prior to being assessed
by Ms SD Mogola, the plaintiff was assessed by Ms M Zwane on 16 July
2016. Her report is not uploaded
to CaseLines. It was Ms
Zwane and Ms Moagi, the defendant’s occupational therapist, who
after a meeting on 11 March
2017, prepared a joint minute.
The defendant’s
experts’ reports
[10]
The defendant delivered reports from the
following experts:
10.1.
Actuary, Mr Lameck Pattison from NBC
Holdings dated 18 August 2017.
10.2.
Orthopedic
surgeon, Dr Bogatsu who assessed the plaintiff on 1 February 2017.
[3]
[11]
Whilst the defendant served notices in
terms of rule 36(9)(a) in respect of the following experts, the
summary contemplated in rule
36(9)(b) has not been uploaded to
Caselines:
11.1.
Industrial psychologist, Caro Cilliers.
11.2.
Educational Psychologist, L Hlalele.
11.3.
Occupational Therapist, S Moagi.
Joint
minutes filed by the experts
:
[12]
The following experts held meetings and the
joint minute prepared them have been uploaded on CaseLines:
12.1.
The
clinical psychologists, Ms Narropi Sewpershad and Ms Elfriede
Tromp. The minute records that the meeting was held
on 30
August 2017 (“
the
2017
Clinical Psychologist’s joint minute”)
.
[4]
12.2.
The industrial psychologists Ms Nadira
Mohamed and Ms Caro Cilliers. The joint minute records that the
meeting was held on
31 August 2017 (“
the
2017 IP joint minute”)
.
12.3.
The
occupational therapists, Ms Zwane and Ms Moagi
[5]
.
The minute records that the meeting was held on 11 March 2017 (“
the
2017
OT joint minute”)
.
The difficulties which
plaintiff’s conflicting reports and the joint minute of
industrial psychologists have presented.
[13]
There has been an unfortunate delay in the
delivery of this judgment for the reasons which follow.
[14]
While preparing the judgment I gathered
from the record that after the plaintiff’s industrial
psychologist, Ms Mohamed (whose
report was prepared sometime in 2017
(the 2017 IP report)) and her counterpart Ms Cilliers, had prepared a
joint minute on 31 August
2017, the plaintiff instructed Mr Muleya,
an industrial psychologist to prepare a report. He consulted with Mr
Muleya on 22 August
2019. Mr Muleya’s report is dated 27
August 2019 (the 2019 IP report).
[15]
As will emerge later, it turns out that the
opinion expressed in the plaintiff’s 2017 IP report was based
on the report of
the educational psychologist, Ms Sepanyane, dated 17
August 2017 (the 2017 Educational Psychologist’s report).
Whereas the
2019 IP report was based on the report of the educational
psychologist, Ms Masipa, dated 27 August 2019 (the 2019 Educational
Psychologist
report).
[16]
The 2019 Educational Psychologist report is
described on the CaseLines’s index as an “
updated
”
report. The filing sheet to which the report is attached, is
captioned “
NOTICE IN TERMS OF RULE
36(9)(b) (EDUCATIONAL THERAPISTS [SIC] REPORT) (UPDATED REPORT
)”.
The 2017 IP report is described on the CaseLines’s index as
“
outdated” report
.
[17]
The filing sheet to which the 2019 IP
report is attached is captioned “
NOTICE
IN TERMS OF RULE 36(9)(b) (INDUSTRIAL PSYCHOLOGIST REPORT) (UPDATED
REPORT
)”.
[18]
It is a misnomer to identify the reports as
“
updated
”
reports. The 2017 IP report, incidentally, is described on the
CaseLines’s index as an “outdated”
report.
This too is a misnomer.
[19]
By describing, and presenting, the 2019
Educational Psychologist report and the 2019 IP report as “
Updated
reports
” the unfortunate
impression was created that the information in the 2017 IP report and
2017 Educational Psychologist report
were revised because
circumstances had changed due to the passage of time (or a change in
circumstances for other reasons).
[20]
The plaintiff’s case for compensation
for loss of earnings is based on the 2019 IP report.
[21]
It had not been brought to my attention
that after the respective parties’ industrial psychologists had
arrived at a consensus
on disputed issues at a meeting of experts, a
later report (i.e., the 2019 IP report) on different assumptions had
been prepared.
[22]
I discovered, after argument and while
preparing the judgment, that the 2019 Educational Psychologist’s
report as well as
the 2019 Industrial Psychologist’s report
were obtained not because circumstances had changed since the earlier
reports by
the experts in these disciplines. A reasonable
inference is that the reports were commissioned because the opinion
of the
earlier experts was not good enough and therefore not
acceptable.
[23]
There was no indication in any of the
reports, nor during argument for that matter, that the markedly
different conclusions arrived
at by Ms Masipa (the educational
psychologist in 2019) and Mr Muleya (the industrial psychologist in
2019) were founded on the
same facts as the opinions of their
predecessors, (the educational psychologist, Ms Sepanyane, and the
industrial psychologist,
Ms Mohamed), in 2017.
[24]
Had I been alerted to the fact that the
later reports did not have any new facts (as opposed to a new
opinion), I would have requested
submissions on the weight, if any, I
should attach to the later reports and whether in such circumstances
a witness does not have
to explain how a different, and more
favourable, conclusion came to be drawn on the same facts. I
grappled, without any assistance
of submissions, on what I should
make of the plaintiff repudiating an opinion given by his own expert
three years prior.
[25]
I had also not been addressed on the status
of the agreement recorded by the industrial psychologists in the
minute dated 31 August
2017. Before I made any finding in this
regard, I afforded to the plaintiff an opportunity to address the
status of the agreement
arrived by the industrial psychologists.
Three e-mails were sent to the plaintiff’s counsel and attorney
requesting
submissions. In the second of these, their attention
was invited to
Bee v Road Accident Fund
2018 (4) SA 366
(SCA). On 26 November 2020, an assurance was
given that a response to the request would be forthcoming by the end
of that
weekend. This did not occur. Instead, two queries
were directed by MS Poto Attorneys to the office of the honorable
Judge President. The mandate of the attorneys who had
represented the plaintiff at the hearing had seemingly been
terminated.
A notice of withdrawal as attorneys of record, nor
a notice of appointment as attorneys of record, have been loaded to
CaseLines.
MS Poto Attorneys have not responded to the queries
I had raised with their predecessors and counsel. To date no
submissions
have been forthcoming. In the circumstances, this
judgment has been prepared without the benefit of submissions from
the
plaintiff.
[26]
To be fair, it is not only both sets of the
plaintiff’s attorneys who are culpable. This situation would
not have arisen had
the Fund participated in the proceedings, even to
the limited extent of ensuring that a proper case was before the
court.
If the claim’s handler at the Fund had at the very
least read the expert reports, she would have realised that the
plaintiff’s
case had changed, and the court could have been
alerted to this. The Fund’s indifference places on a
court the burden
to ensure that the compensation which is paid by the
Fund is fair not only to the plaintiff, but also to the Fund. The
burden
placed on a court to ensure that public funds are protected is
an unenviable one. The Road Accident Fund Act constitutes
social security legislation. If one claimant is paid more than
he/she is entitled to receive, the Road Accident Fund is depleted
to
the prejudice of other claimants. In this context, and alive to
the financial health of the Fund, the court has a duty
to ensure that
the compensation paid to a claimant is fair and equitable. It
is obvious that if a single claimant is overcompensated,
the RAF is
prejudiced. What must not be forgotten is that this is to the
detriment of pending claims and future claims against
the Fund and
consequently to present and future claimants.
The issues
[27]
Returning to the issues the court is called
upon to decide.
[28]
The defendant has:
28.1.
accepted full liability for the plaintiff’s
proven or agreed damages.
28.2.
The dispute as to the defendant’s
liability for general damages has been settled, so too the
plaintiff’s claim for medical
expenses.
[29]
The remaining issue is the plaintiff’s
claim for compensation for loss of earnings.
Presentation of
plaintiff’s case
[30]
No
viva voce
evidence was led at the trial. The plaintiff’s case was
presented on the joint minutes compiled by the respective parties’
expert witnesses after meeting with their counterparts and the
reports which had been prepared by the plaintiff’s witnesses.
[31]
The plaintiff’s case was argued
before me on:
31.1.
The joint minute delivered by:
31.1.1.
The clinical psychologists; and
31.1.2.
The occupational therapists.
31.2.
The
2019 Educational Psychologist’s report, in respect of an
assessment of the plaintiff on 21 August 2019
[6]
.
(The defendant had not delivered a report from an educational
psychologist); and
31.3.
The 2019 Industrial Psychologist’s
report.
[32]
Regrettably, it was not brought to my
attention that the plaintiff’s industrial psychologist, Ms
Nadira Mohamed and her counterpart
Ms Caro Cilliers had prepared a
joint minute after a meeting on 31 August 2017.
[33]
I was under the impression throughout the
proceedings before me that the industrial psychologists had not had a
meeting. And
that I was therefore called to decide the matter
on the reports of the plaintiff’s industrial psychologists and
that I should
accept the views of the plaintiff’s industrial
psychologist, Mr Vuyani Muleya, above those of the defendant’s
industrial
psychologist. The plaintiff’s industrial
psychologist had confirmed the contents of her report in an
affidavit.
[34]
It
was only while preparing this judgment that I discovered that two
years before Mr Vuyani Muleya assessed the plaintiff and prepared
a
report, the plaintiff had been assessed by Ms Nadira Mohamed
[7]
after which she prepared a report.
[8]
The report is not dated. It was attached to a filing
notice signed on 18 August 2017. It can therefore be safely
assumed that the report had been prepared at the very latest on 18
August 2017. I also then discovered that Ms Nadira Mohamed
and
her counterpart Ms Caro Cilliers had prepared a joint minute after
the meeting on 31 August 2017. These facts were not
brought to
my attention during the hearing. Considering that a litigant is
bound by the concessions made by an expert witness
instructed by the
litigant, I requested the plaintiff’s counsel to prepare
written submissions on whether I can disregard
the consensus arrived
at by the industrial psychologists and on what basis, and why I
should have regard to the report of Mr Muleya.
I will in due
course discuss the issue of the consequences of an agreement arrived
at by expert witnesses.
The evidence
[35]
Some of the expert witnesses qualified themselves as such and
confirmed
reports in an affidavit loaded to CaseLines after the
hearing. It is not always clear whether the reports confirmed
were
indeed those reports on which the case was presented before me.
In other cases, I have attempted to compare the reports to
establish
whether they are the same. This has been a most tedious
exercise and highly unsatisfactory.
[36]
The
following
experts deposed to
affidavits:
36.1.
T
he educational psychologist Ms Masipa. The
report compiled after an assessment conducted on 21 August 2019 is
attached to
the report. The report is not dated. The date when
the affidavit was signed is also not reflected. The affidavit
was
uploaded to CaseLines on 25 June 2020 after the matter was
heard. I have undertaken a time-consuming exercise to determine
whether the report, which was referred to in argument, namely that at
CaseLines 003-625-003-285 is the same as that attached to
the
affidavit and which appears at CaseLines 001A-3 to 001A-23. (The
report does appear to be the same)
36.2.
The industrial psychologist, Mr Vuyani Muleya, in
his affidavit refers to a report he compiled after he assessed the
plaintiff on
22 August 2019. The report is not attached to the
affidavit. In his affidavit Mr Muleya after referring to his
assessment
of the plaintiff on 22 August 2019 states:
“…
subsequently
I prepared a medico legal report as per instruction of Baloyi
Attorneys reference number 01173A/BALOYI/MVA. I
hereby confirm
the content of the said medico legal report is my professional
opinion that I submit to the Honourable Court the
content of the
medico legal report and can be incorporated herein, as part of this
affidavit [sic]. To this end I confirm
that a personally to a
history a history from the patient and examined him [sic]”
The affidavit was
uploaded to CaseLines on 25 June 2020 after the matter was heard.
I do not know which report he has confirmed
under oath. It is
unacceptable that affidavits are drawn without any thought going into
what their purpose is. The expert
affidavit confirming the report
containing the opinion turns inadmissible evidence into admissible
evidence. I have assumed
that there is only one report and that
it has been confirmed under oath. I should however not have to
assume that the report
which Mr Muleya refers to in his affidavit is
the report dated 28 August 2019 (CaseLines 033-241 to 262). The
papers should
have been prepared properly. I am often left with
the distinct impression that in recent times plaintiffs’ legal
representatives
believe that orders in matters against the Fund are
merely for the asking.
36.3.
The
Occupational Therapist, Ms SD Mogola, in her affidavit refers to a
report compiled after assessing the plaintiff on 22 August
2019.
The report is not attached to the affidavit
[9]
.
In her affidavit Ms Mogola, after referring to her assessment of the
plaintiff on 22 August 2019, states:
“
I
subsequently prepared a medico legal
reference number 22/08/2019 SEKHWELA. I confirm the content of the
said medico legal [SIC]
is my professional opinion that I submit to
the Honourable Court. The content of the medico legal report
can be incorporated
herein, as part of this affidavit. To this
end, I can confirm that I personally took a history from the patient
and examined
him [sic].”
I do
not know which report she has confirmed under oath. Is it the
report dated 29 August 2019 (CaseLines 033-201 to 003-228)?
I
have again assumed that there is only one report and that it is that
report which has been confirmed under oath.
[37]
I will decide this matter on the common cause facts in the joint
minutes
of the experts and the admissible evidence before me.
The reports which have not been confirmed under oath have not
been
considered.
The
injuries and present complaints
[38]
The plaintiff was two months shy of 18 years when the collision
occurred.
He sustained a head, wrist, and bladder injury. His
pelvis and wrist were fractured and there were multiple lacerations
to
the scalp, right forearm, right lower leg, soft tissue injuries to
the neck, thoracic spine, and right knee, as well as soft tissue
facial swelling.
[39]
The plaintiff complained to the occupational therapist, Ms Mogola,
that
he experiences haematuria, residual headaches, memory loss, pain
in the right leg during inclement weather and with prolonged sitting
and standing, he is unable to carry heavy loads due to pain in the
right arm, he is unable to run or walk long distances due to
back
pain and his teeth are sensitive to hot beverages. He easily
forgets, is unable to concentrate, suffers from nightmares
and moving
vehicles cause him anxiety.
[40]
He reported to the educational psychologist that he experiences pain
in the wrist when lifting heavy objects and complained of pain in the
abdomen area when urinating.
[41]
On the date of Ms Mogale’s assessment (i.e., 22 August 2019)
the
plaintiff was not employed and was relying on financial support
from his father.
The
occupational therapists
The
2017 OT Joint Minute
[42]
The joint minute prepared by the occupational therapists, Ms Zwane
(for
the plaintiff) and Ms Moagi (for the defendant) on 11 March 2017
recorded that the plaintiff was in grade 11 at Mookgo High School
and
progressed to Grade 12 but failed the grade. Ms Zwane recorded
that the plaintiff had to change his career choice from
engineering
to law after the accident. The two occupational therapists
agreed on the following:
42.1.
the plaintiff was unemployed and had never been employed neither
formally nor informally.
42.2.
from a
physical
perspective he remained
suited to perform sedentary and light occupations with the capacity
to handle lower range medium loads.
42.3.
his
residual
physical capacity was likely
to decline in the period leading up to the
recommended
total right knee replacement surgery.
42.4.
the plaintiff has
suffered
“some
vocational limitations”.
42.5.
the plaintiff
is
likely
to
be suited for some semi-skilled occupations and skilled occupations
based on educational qualifications and residual cognitive
deficits.
42.6.
considering that most, if not all unskilled occupations and manual
occupation require
standing
walking
and
handling of medium to heavy loads, he will remain unlikely to perform
such
occupation
considering his (then)
current physical ability and the presence of a degenerative
condition. If the plaintiff secures such
an occupation, it is
unlikely that he would perform it until he reaches normal retirement
age.
[43]
These occupational therapists recorded that the plaintiff presented
with
cognitive deficits which are likely to impact on his vocational
ability should he secure employment in future. These deficits,
in their opinion, have compromised the plaintiff’s vocational
prospects. According to them, he remains likely
to
experience difficulties in performing highly skilled and skilled
occupations because they are cognitively demanding.
The
2019 OT report
[44]
Ms Mogale reports the following:
44.1.
The plaintiff
described
the pain he
experiences as:
44.1.1.
constant throbbing pain in the
right knee which is aggravated by
doing elevated and lowered work in a standing or sitting position.
44.1.2.
Constant throbbing pain in the
lower back aggravated by lifting and
carrying objects, kneeling, and sitting.
44.1.3.
Frequent dull pain in the right
arm when lifting and carrying objects
with the right hand and when doing elevated work.
44.2.
The plaintiff presented with reduced physical endurance but was able
to complete all tasks
during the evaluation. He could maintain
a good sitting and standing position. He
complained
that he experiences pain after maintaining a sitting or standing
position for more than an hour.
44.3.
He walked with a normal limping gait, presented with good standing
and sitting static
balance, and good
dynamic
balance.
44.4.
Insofar as
the
objective
assessment of pain
[10]
undertaken by her is concerned, she found that the plaintiff’s
pain related disability concerning activities of daily life
(ADL),
work, social, leisure and emotional scored between 50%-60% which is
an indication of “severe disability” in
those areas.
Pain is alleviated by rest. The plaintiff has a good functional
capacity to perform day to day physical
activities.
44.5.
His pain
disability
for lower back pain was
assessed as being a moderate disability affecting his
participation
in the activities of daily living.
44.6.
The plaintiff displayed a limited attention span. He completed
all tasks with rest
breaks in between the given instructions.
However, in some instances the instructions had to
be
repeated. The
plaintiff
also
presented with impaired memory. It was concluded that the
plaintiff has limited cognitive function which has a negative
impact
on his day-to-day activities.
44.7.
The Quick Neurological Screening Test which assesses the development
of motor coordination
and sensory integration (both of which relate
to learning as well as general daily
functioning)
was administered. It
features 15 tasks used in
traditional neurologic exams. E
ach
task in the test gives inputs on evaluation to learning, occupational
functions and activities of daily living.
The
plaintiff scored 20%
on the test. This indicates that
the plaintiff will not have difficulty with planning and executing
motor movements as well
as doing his daily living activities, however
there are behavioural irregularities.
44.8.
The
plaintiff’s scored 23 on the Montréal Cognitive
Assessment
[11]
which is
indicative of abnormal function in cognitive domains which would
interfere with his activities of daily living.
[45]
Ms
Mogale
carried
out a Functional Capacity Evaluation (FCE)
.
This
tool
is employed to objectively evaluate the physical capabilities of a
person to determine whether those capabilities are well
matched to
the physical demands of a specific job. Clinicians, such as
occupational therapists, employ it to evaluate the degree
of an
individual’s disability. Functional Capacity Evaluation
(FCE) is described in the context of occupational rehabilitation
as a
“systemic assessment of individual’s ability to perform a
series of tasks safely.” FCEs are used,
amongst others,
to identify how much work the patient can perform and to assist in
disability determination process.
[12]
There are a number of FCEs, however only the Ergoscience “Physical
Work Performance Evaluation” (PWPE) has been submitted
for a
reliability study for all its sections.
[13]
The PWPE is one of the most used FCEs for back pain patients in the
United States. Moreover, it covers a variety of physical demands
and
gives an overall view of a worker’s work capacity. The
purpose of the PWPE is to determine a worker’s maximum
safe
physical working abilities. The PWPE consists of a series of 36
standardised tasks to evaluate six different sections: (i)
dynamic
strength; (ii) position tolerance; (iii) mobility; (iv) balance; (v)
endurance; (vi) coordination and fine motor skills.
These 36
tasks cover the 20 physical demands described by the Dictionary of
Occupational Titles (DOT)
[14]
.
For each task, a Physical Performance Score, a measure of the safe
level of work (SLW) that can be safely accomplished by
the subject is
obtained.
[46]
The occupational therapist reports as
follows on the FCE:
46.1.
The plaintiff was able to safely complete
most of the tasks presented to him. He put in full physical
effort.
46.2.
Limping was observed. He used inappropriate body
mechanics and was not weight-bearing on the right leg. Pain and
fatigue
had a bearing on his performance.
46.3.
His major areas of dysfunction were limited
dynamic strength (lifting and carrying) and poor position tolerance
(doing elevated
work, bending, forward-reaching and trunk rotation).
This was due to pain in the right arm, lumbar spine and both
shoulders.
He also showed functional limitations when doing
elevated work, bending, forward-reaching and trunk rotation.
46.4.
The plaintiff showed the ability to
constantly (67%-100% of an 8-hour workday) sit, stand, climb stairs,
crawl. squat, walk, carry
out fine motor movements, and grip.
46.5.
He was able to lift a maximum load of 23 kg
from floor level to waist height using inappropriate body mechanics.
He was able
to do this type of lifting occasionally, (0%-33% of the
day). He was also able to lift a maximum load of 20 kg from
waist
to eyelevel. He was able to do so occasionally (0%-33% of the
day) as well.
46.6.
The plaintiff showed the ability to carry a
unilateral right arm 14kg maximum load and a unilateral left arm 23kg
maximum load,
occasionally (0%-33% of the day). He also
demonstrated the ability to carry a bilateral 20kg maximum load.
46.7.
He was able to do pushing and pulling
activities with the maximum weight of 25 kg.
46.8.
He was unable to do squatting tasks.
46.9.
He was able to do tasks in a sitting,
forward-reaching kneeling, bending trunk rotation positions and
standing. He was able to do
these frequently (i.e., 30 – 66% in
an 8-hour workday).
46.10.
He demonstrated the ability to perform
dynamic balance to sufficiently maintain these tasks for productive
work activities for up
to two-thirds to a full day (i.e., constantly)
as required.
46.11.
The Ergo-Science Overall level of work
placed the plaintiff’s strength in the medium range of work.
This means that he could
do work which required him to exert between
9.09kg to 22.2 kg force occasionally (0%-33% of the day) and/or
4.45kg to 11.36kg of
force frequently (34%-66% of the day), and/or
greater than negligible up to 4.4kg of force constantly, to move
objects (67%-100%).
[47]
Ms Mogale concluded that the plaintiff does not meet the demands of
his
future work considering that four years had passed, and the
plaintiff was still presenting with pain and discomfort. What
strikes me about the conclusion is what this “future work”
is, is not disclosed.
The
educational psychologist
[48]
Two educational psychologists were
instructed to prepare a report on behalf of the plaintiff. The one
report was in 2017 by Ms Sepenyane.
Two years later, on 21
August 2019, Ms Masipa assessed the plaintiff. The defendant
did not appoint an educational psychologist.
There are
therefore no joint minutes.
[49]
Ms Masipa reports that the plaintiff failed
grade 1. In 2008, successfully completed grade 8 and grade 9.
According to the
grade 9 final year report, the plaintiff’s
performance was within the average range to the below average range.
He transferred
to another school where he was enrolled in grade 10.
He failed grade 10 however successfully repeated it. The school
at which
he completed grade 10 found the plaintiff to be hard-working
and a respectful and obedient learner. He was enrolled at a
different school in grade 11. He attended the first two terms
of that academic year. The accident intervened and the
plaintiff was unable to attend school for four weeks. He was often
absent due to pain. He had trouble writing because of the injury
to
his dominant hand. He had difficulty walking to school which was a
distance from his home. He passed grade 11 in the year
of the
accident. The school report for the fourth term recorded that
the plaintiff’s achievement was “
between
substantial and moderate
”.
[50]
In the following year he failed grade 12.
He sat for the Grade 12 examinations in 2014 but failed the
grade. He later again
attempted to complete grade 12 but could not
sit for the final examination because he found it difficult to
concentrate and study.
The plaintiff’s highest educational
level is therefore grade 11. The plaintiff has never been
employed. His post-accident
unemployment is due to the injuries
sustained in the collision. He has also not participated in a
job search for the same
reason.
[51]
Ms Masipa is of the view that the outcomes
of the psychometric assessment conducted by her indicate that the
plaintiff’s global
cognitive intellectual level of functioning
was within the average range. This indicated to her that the
plaintiff should have
adequate skills to learn. He did however
present with cognitive deficits in the areas concerning attention,
concentration, memory,
mental manipulation and processing.
According to her, the pain could have exacerbated his attention
difficulties because
he must change his sitting position often and
take short breaks. It is expected that these negatively impacted on
his scholastic
function. In her assessment the plaintiff’s
scholastic performance according to the tests administered, was below
his age
and level. Additionally, he presented with signs of
emotional challenges.
[52]
Ms Masipa concluded that:
52.1.
In view of two years having passed since
the accident, she considers the
plaintiff’s
injuries
permanent.
52.2.
She is of the view that the plaintiff is in
a disadvantaged position academically and vocationally and further
that it is unlikely
that he will attain any educational
qualifications beyond grade 11.
52.3.
But for the accident, the plaintiff would
have reached grade 12 and passed it with at least a diploma
admission. He would
have been eligible to study towards a NQF
Exit level 6 qualification.
52.4.
The accident sequelae have had a negative
impact on the plaintiff’s cognitive and academic performance.
It is unlikely that
the plaintiff will be able to attain any
qualification beyond grade 11.
[53]
Ms Sepenyane’s report pre-dated Ms
Masipa’s by approximately two years. Assessing the
plaintiff’s pre-accident
employment prospects. Ms
Sepenyane postulated two scenarios:
53.1.
considering that the plaintiff presented
with learning problems before the accident he was possibly average
learner without a supportive
and stimulating environment. He
reported to her that he failed because his family did not treat him
well. This could have
been ongoing unresolved issue affecting his
pre-accident scholastic performance.
53.2.
It is possible that the plaintiff had the
cognitive ability to perform adequately but was faced with the
environment not conducive
enough to tap into his potential. He could
possibly have gotten a low Matric (NQF4) and ended up in a
semiskilled job. The
possibility also exists that he may have
gotten a bursary and proceeded with post matric study possibly and
FET college (NQF5)
like his deceased mother.
[54]
Clearly, Ms Masipa’s assessment of
the plaintiff’s pre-accident employment prospects are more
favourable than those
of Ms Sepenyane.
The clinical
psychologists
[55]
I have before me only the joint minute
dated 30 August 2017 prepared by Ms Sewpershad and Ms Tromp.
Neither the plaintiff’s
clinical psychologist’s report
nor that of the defendant’s clinical psychologist were uploaded
to CaseLines.
This is unsatisfactory considering that the
clinical psychologists record in the minute that they “defer to
the other recommendations
as set out in [their] respective reports”.
[56]
The clinical psychologists agree that:
56.1.
The plaintiff exhibits neuropsychological
problems which suggest that he is functioning at a lower level in
comparison to his pre-morbid
potential.
56.2.
The plaintiff’s difficulties are
deemed consistent with the profile of an individual who has suffered
a mild traumatic brain
injury, the difficulties being exacerbated by
the effects of post-accident psychological outcome and reported pain.
56.3.
Some of the cognitive difficulties may have
been present prior to the accident given the history of reported
failed grades.
56.4.
No further recovery is expected regarding
the plaintiff’s neuropsychological status.
56.5.
Significant changes seem to have occurred
to the plaintiff psychological functioning due to the trauma of the
death of the plaintiff’s
friend in the same accident, as well
as the chronic pain he experiences.
56.6.
both psychologically and psychiatrically
the plaintiff is considered significantly more vulnerable than prior
to the accident with
increased risks of exposure to social
discrimination from the residual scarring caused by his injuries.
56.7.
the plaintiff’s neuropsychological
impairment, depressive mood disorder and pain present a significant
threat to his occupational
function.
The industrial
psychologists
[57]
The industrial psychologists, Ms Mohamed
for the plaintiff and Ms Cilliers for the defendant, prepared joint
minutes following on
a meeting held between them on 31 August 2017 in
which they record:
57.1.
the plaintiff was a part-time informal
vendor selling braaied/grilled meat after school and on weekends.
57.2.
Plaintiff would have attained a grade 12
qualification would have entered the labour market as a semi-skilled
worker, in line with
the LQ earnings for semi-skilled workers.
Given the plaintiff’s young age it is likely that he would have
progressed
to the UQ earnings by the age of 45 years with
inflationary increases there after until the normal retirement age of
65 or until
physically unfit based on his circumstances.
57.3.
If
the plaintiff was successful in attaining a NFQ Level 5 qualification
he is more likely to have entered the labour market at
a Paterson
Grading level A1 LQ earnings (basic salary) taking into account his
learning difficulties prior to the accident, his
low average verbal
IQ score as well as his geographical location. Given his young age
and with continued experience and training,
his earnings are likely
to have progressed to the Paterson grading level B2 UQ earnings
(basic salary), Corporate Survey Earnings
(R Kock, 2017), Table
2.
[15]
57.4.
It is unlikely that the plaintiff will
secure sedentary work because grade 12 is a usual requirement for
such positions, his limited
English proficiency and his lack of
experience.
57.5.
With a grade 11, it is unlikely that
employers will be willing to give him preference in a labour market
where he will be competing
with an abundance of matriculants.
57.6.
Most if not all sedentary occupations are
regarded as skilled occupations and the occupational therapists agree
that the plaintiff
is likely to experience difficulties in highly
skilled and skilled occupations because of his cognitive deficits.
57.7.
The chances of the plaintiff securing light
and semi-skilled work is severely limited due to his physical
cognitive and psychological
limitations.
57.8.
Due to the manual nature of unskilled
occupations the plaintiff remains unlikely to perform unskilled
occupations considering his
physical abilities and the presence of a
degenerative condition. He may rely on reasonable accommodations in
the workplace and
the use of occupational assistive devices.
57.9.
The plaintiff’s employment prospects
are limited to his labour potential as opposed to an educated worker
who has specialised
skills and expertise.
57.10.
Because employers are likely to employ a
better educated individual with grade 12 or a physically able
individual for physically
strenuous duties, it is unlikely that
future employers will be willing to accommodate the plaintiff’s
medical difficulties
by providing work with a limited scope.
57.11.
The plaintiff’s physical limitations
render him an unequal competitor in the open labour market.
57.12.
Plaintiff has suffered a past loss of
income and will suffer future loss of income.
57.13.
Ms Mohamed holds the view that it is
unlikely that the plaintiff will be able to improve his education or
secure employment in the
sedentary/light occupations, or unskilled or
semiskilled sector.
[58]
Ms Cilliers is of the opinion that the
plaintiff has been compromised in the open labour market and he will
experience periods of
unemployment. She recommends that a
higher contingency in the circumstances is considered. Furthermore,
it is anticipated
that the plaintiff’s income will be less
because he will be seen as a vulnerable employee who needs
accommodation and has
to take frequent breaks.
The industrial
psychologist: Mr Vuyani Muleya
[59]
On 22 August 2019, the plaintiff was
assessed by Mr Vuani Muleya, an industrial psychologist following on
which he prepared a report
on 27 August 2019. In his report Mr
Muleya records that he was placed in possession of the reports of the
clinical psychologist
Ms Sewpershad, educational psychologist Ms
Masipa and the occupational therapist Ms Mogola. He was
seemingly not provided
with the report compiled by the industrial
psychologist Ms Mohamed, nor the joint minutes prepared by the latter
and her counterpart
Ms Cilliers. There is no reference in his
report to the 2017 Educational Psychologist report.
[60]
Mr Muleya is of the opinion that had the
accident not occurred the plaintiff would have completed grade 12 and
went on to study
towards a diploma i.e., a NQF Level 6 qualification
of his choice. He would have completed this by the age of 24 –
25.
He would have spent 6-12 months searching for employment in
line with his qualifications. He would have secured employment
at the age of 25 – 26. He would have started earning at
Paterson Level B4 and his earnings would have grown gradually with
experience towards Paterson Level C3/C4 by the age of 45. He
would have reached his career ceiling at this level and would
only
enjoy yearly inflation related salary increments until the age of 65
depending on his health economic factors and retirement
policy of his
employer. Mr Muleya’s opinion is based on the opinion of the
educational psychologist Ms Masipa. Mr Muleya
appears not to
have been privy to Ms Sepenyane’s report. He was however
privy to the report from the clinical psychologist,
Ms Sewpershad.
He therefore was confronted with the conclusion that the plaintiff’s
level of cognitive functioning
may have been in the low average range
prior accident. Ms Sewpershad’s view is based on the plaintiff
having failed grade
1 and grade 10 once. Mr Muleya challenges
the correctness of Ms Sewpershad’s view because the clinical
psychologist
had noted that the plaintiff had scored on two tests in
the superior range and on one test above average which suggested to
him
that the plaintiff’s “
educational
history may not be a true reflection of his cognitive potential
”.
Because of this he concludes that he is of the opinion that had the
accident not occurred, the plaintiff could have
passed matric and
went on to study a further tertiary level. He sees support for this
in the following statement in Ms Masipa’s
report:
“
Noting
the other contextual factors (mothers death, father visiting on
occasion, moving houses and school) it could be stated that
these
have a potential to pose as learning barriers for the learner and
that could have influenced his learning general scholastic
performance considering the grade at which he was at the time of the
accident, grade 11, his performance and the support rendered
by the
Department of education to high school learners to reach and pass
grade 12, his post-accident psycho-educational psychometric
assessment outcomes, [the plaintiff] would have reached grade 12 as
he did post-accident. He would have passed it with at
least
Diploma admission. He would then be eligible to study towards a NQF
Exit level 6 qualification.”
[61]
Turning to the plaintiff’s
post-accident employment prospects, Mr Muleya is of the view that the
plaintiff would only qualify
for general worker jobs because of his
level of education. However, these jobs require prolonged
sitting, walking, stair
climbing, squatting and lifting heavy objects
which would render him physically unsuitable. Plaintiff is
accordingly at risk
of prolonged unemployment. Additionally,
the neurocognitive difficulties which confront the plaintiff are
prejudicial to
his participation in the open-labour market. The
plaintiff is psychologically vulnerable after the accident because of
depression,
anxiety and negative self-image which are all compounded
by the chronic pain. The scarring caused by the injuries expose
the plaintiff to social discrimination. All of these will impact
negatively on his ability to maintain healthy relationships in
the
workplace. This makes the plaintiff vulnerable to unemployment
according to Mr Muleya.
[62]
Insofar as the plaintiff’s
post-accident employment prospects are concerned, Mr Muleya is of the
view that it is not expected
that the plaintiff will attain academic
qualifications beyond grade 11. Based on this he does not qualify for
office-based, and
clerical jobs, fall within the sedentary and light
category of work. However, because of his physical, cognitive and
psychosocial
limitations he is not suitable for general worker jobs
either.
[63]
According to Mr Muleya the plaintiff is a
compromised jobseeker and competitor in the open labour market. He is
at risk of prolonged
periods of unemployment throughout his adult
career. The plaintiff will therefore struggle to secure employment in
the open labour
market unless accommodated by a sympathetic
employer. In his view, employers in the open labour market are
not sympathetic
to the disabled people living with limitations. In
the unlikely event that he manages to obtain employment in future,
the plaintiff’s
earnings are not expected to go beyond the mild
quartile of unskilled workers as per salary guidelines for
noncorporate workers
in the open labour market.
Analysis
Pre-accident
employment prospects
[64]
There is a marked difference between Mr
Muleya’s assessment of the plaintiff’s pre-accident
employment prospects and
those agreed upon by the industrial
psychologists, Ms Mohamed and Ms Cilliers at the meeting of these two
experts. Mr Muleya’s
assessment of the plaintiff’s
pre-accident employment prospects are based on the report of Ms
Masipa who assessed the plaintiff
on 21 August 2019. While the
joint minute of the industrial psychologists is based on the
assessment conducted by Ms Sepenyane.
The plaintiff’s own
experts differ on the plaintiff’s academic path. No
explanation is given for this.
What troubles me is that counsel
did not consider it appropriate to bring this to my attention when
the matter was argued.
[65]
I am not required in this case to determine
whether the opinion of the defendant’s expert witness is more
probable than that
of the plaintiff. I must decide, and I must
add most unusually, which of the plaintiff’s educational
psychologists’
postulation on the plaintiff’s
pre-accident academic progress is more probable.
[66]
The plaintiff’s industrial
psychologists’ assessment of the plaintiff’s pre-accident
prospects of employment is
premised on the findings of either the
educational psychologist, Ms Sepenyane or Ms Masipa.
[67]
Do the probabilities favour the view
expressed by the plaintiff’s educational psychologist, Ms
Sepenyane in 2017? Or
do the probabilities favour the view
expressed by the plaintiff’s educational psychologist, Ms
Masipa in 2019.
[68]
On the best-case scenario for the
plaintiff, Ms Sepenyane is of the view that the plaintiff may have
pursued post matric study possibly
and FET college (NQF5) like his
mother had.
[69]
Ms Masipa is of the view that (i) the
plaintiff would have completed grade 12 and proceeded to study
towards a diploma i.e., NQF
Level 6 qualification; and (ii) would
have started earning at Paterson Level B4 and his earnings would have
grown gradually with
experience towards Paterson Level C3/C4 by the
age of 45 he would have reached his career ceiling at this level and
would thereafter
have enjoyed only yearly inflation related salary
increments until the age of 65.
[70]
I have two difficulties with Ms Masipa’s
conclusion concerning the plaintiff’s academic progress.
Having acknowledged
that the circumstances in which he found himself
pre-accident (his mother’s death, the infrequent contact with
his father,
relocating to another area and therefore changing
schools) are circumstances which could potentially pose as learning
barriers
and could have influenced the plaintiff’s learning
general scholastic performance, she leaves this out of account even
though
it is evident that he failed grade 10 at a point when he had
changed schools. It seems that relocating from one environment
to another could have posed a learning barrier. Ms Masipa does
not explain why relocating to another area and a change in
learning
institutions when he enrolled for a Diploma would not have caused the
type of disruption that could have led to the plaintiff
not
completing it.
[71]
Unless the factual foundation for an expert
witness’s opinion is correct, and the opinion is underpinned by
proper reasoning,
opinion evidence has no probative value.
[72]
I find no support in Ms Masipa’s
report for her conclusion that the plaintiff would have passed grade
12 “with at least
a Diploma admission”.
[73]
I find nothing the report to suggest that
having identified that the plaintiff’s performance in grade 9
was within the average
to below average range, she took this into
account in arriving at her conclusion on his academic progression.
Lest
my criticism of her opinion in this regard is
unreasonable, I am still confronted with the problem that Ms Masipa
does not say
that the plaintiff would have attained a NQF Exit level
6 qualification. What she says is that with a grade 12 with at
least
a Diploma admission the plaintiff “
would
then be eligible to study towards a NQF Exit level 6 qualification.”
This is different from saying
that he would have obtained such a qualification.
[74]
I am not satisfied that the plaintiff has
discharged the onus of proving that but for the accident the
plaintiff would have successfully
attained a NQF Exit level 6
qualification. Mr Muleya’s view on the plaintiff’s
pre-accident career prospects
rests entirely on Ms Masipa’s
view on the plaintiff’s academic progress pre-accident.
It therefore follows that
Mr Muleya’s views on the matter
cannot be sustained.
[75]
Depending on the status of the agreed facts
as recorded in the joint minute all may not be lost for the
plaintiff. The plaintiff’s
industrial psychologist Ms
Mohamed and the defendant’s industrial psychologist had reached
consensus at a joint meeting on
the plaintiff’s pre-accident
academic progress.
[76]
Based
on the educational psychologist, Ms Sepenyane’s assessment that
plaintiff could possibly have gotten a low Matric (NQF4)
and ended up
in a semi-skilled job, Ms Mohamed and Ms Cilliers agreed that the
plaintiff would have completed grade 12 and would
likely have entered
the labour market as a semiskilled worker earning in line with the LQ
earnings for semi- skilled workers and
that it is likely that he
would have progressed to the UQ earnings by age 45 with inflationary
increases thereafter until the normal
retirement age of 65.
[16]
[77]
They
also agreed that if the plaintiff was successful in attaining a NFQ
Level 5 qualification, he is more likely to have entered
the labour
market at a Paterson Grading level A1 LQ earnings (basic salary)
taking into account his learning difficulties prior
to the accident,
his low average verbal IQ score as well as his geographical location.
Given his young age and with continued experience
and training, his
earnings are likely to have progressed to the Paterson grading level
B2 UQ earnings (basic salary), Corporate
Survey Earnings (R Kock,
2017), Table 2.
[17]
[78]
In
Craig
Francois Thomas v BD Sarens (Pty) Ltd
[18]
(approved by the Supreme Court of Appeal in Bee v Road Accident Fund
2018 (4) SA 366
(SCA)) Sutherland J (ashe then was) had this to say
about expert witnesses and agreements they arrive at with their
counterparts:
“
[8]…
what
should appear, typically, from an expert’s report is a set of
facts and/or a series of opinions. Sometimes the ‘facts’
upon which opinions are based are contested and sometimes experts
called by opposing litigants agree on those facts. Similar
agreements or disagreements over a given opinion can occur.
[9]
The general principle is that a decision on what constitutes the
facts
on any issue is the preserve of a court. …There is
only one category of exception: i.e., when the parties agree on
the
facts. Even if a court might be sceptical about a set of agreed
facts, there is no licence to go behind the parties’
agreement,
at least in a civil matter, just as the admitted facts on the
pleadings are not to be interrogated by a court.
[10]
Where litigants in a damages dispute give due notice to call an
expert who is to
adduce facts and to give an opinion, such notice
binds the litigant who gives that notice. It is not open to
that litigant
to impeach its own expert witness unless and until it
clearly repudiates all, or some, of the expert’s contribution.
[
11]
Where the experts called by opposing litigants meet and reach
agreements about facts
or about opinions, those agreements bind both
litigants to the extent of such agreements. No litigant may
repudiate an agreement
to which its expert is a party, unless it does
so clearly and, at the very latest, at the outset of the trial.
It is self-evident
that do so at so late a stage is undesirable
because it may provoke delay, but that is a practical aspect not
touching on any principle.
It is conceivable that very
exceptional circumstances might exist that allow a litigant to
repudiate an opinion later than this
moment, such as fraudulent
collusion, or some other act of gross misconduct by the expert, but
such considerations do not bear
extrapolation for present purposes.
[12]
Where experts are asked or are required to supply facts, either from
their own investigations,
or from their own researches, and an
agreement is reached with the other party’s experts about such
facts, such an agreement
on the facts enjoys the same de facto status
as facts that are expressly common cause on the pleadings or facts
agreed in a pre-trial
conference or in an exchange of admissions.”
[79]
Ms Mohamed and Ms Cilliers accepted the
findings and the opinion expressed by Ms Sepenyane. Based on
that they agreed on facts
going to the plaintiff’s academic
progression had the accident not occurred. The agreed facts
have the same weight
as common cause facts on the pleadings.
Neither the plaintiff nor the defendant can simply repudiate that
opinion because
it does not suit them.
[80]
In any event I am satisfied that the
probabilities favour a scenario where the plaintiff would have
achieved a NFQ Level 5 qualification.
[81]
The plaintiff’s late mother had
passed Matric and was undertaking FET. The plaintiff’s
average mark for the following
academic years was as follows:
81.1.
Grade 8 (2008): 50.77%.
81.2.
Grade 9 (2009): 49.44%.
81.3.
Grade 11 (2012): 45%.
[82]
In grade 8 the plaintiff achieved above
50%, in grade 9 he achieved just under 50% and in grade 11 (which was
the year in which
he was involved in the accident) he achieved 45%. I
am satisfied that the probabilities favour the best-case scenario
postulated
by Ms Sepenyane, namely that the plaintiff would have
pursued post matric study, attended a FET college like his mother had
and
would have obtained an NQF5 qualification.
[83]
I am alive to the fact that the plaintiff’s
industrial psychologist’s opinion is based on the report of Ms
Sepenyane
which is not confirmed under oath. In my view it is
permissible to have regard to Ms Sepenyane’s report because it
was the basis for the consensus on certain aspects between the
plaintiff’s industrial psychologist Ms Mohamed and the
defendant’s
industrial psychologist, Ms Cilliers. I can
find no basis to reject this agreed opinion.
Post-accident
employment prospects
[84]
The industrial psychologists Ms Mohamed and
Ms Cilliers agree that:
84.1.
It is unlikely that the plaintiff will cope
with future studies.
84.2.
It is unlikely that the plaintiff will be
able to secure sedentary work in the absence of a grade 12
qualification and his limited
English proficiency and lack of
experience.
84.3.
The prospects of the plaintiff securing
light and semi-skilled work is severely limited because of his
physical, cognitive and psychological
limitations. These
limitations also exist when it comes to the prospect of the plaintiff
obtaining employment in the unskilled
sector especially because of
the manual nature of the work involved.
[85]
Mr Muleya does not expect the plaintiff to
further his studies beyond grade 11. He holds the view that the
plaintiff does
not qualify for office-based and clerical jobs that
fall within the sedentary and light category. He is not suited
for general
worker jobs within the medium to heavy category of work
because of his physical, cognitive and psychological limitations
which
are compounded by chronic pain. Mr Muleya concludes
that the plaintiff is at risk of prolonged periods of unemployment
and that if the plaintiff does secure employment, it is unlikely to
go beyond the mid-quartile of unskilled workers as per salary
guidelines for non-corporate workers in the open labour market.
(CaseLines: 033-259 (p.18 of Mr Muleya’s report).
[86]
Evidently in Mr Muleya’s expert
opinion the plaintiff is for all intents and purposes unemployable.
[87]
I find it most remarkable that the
plaintiff has made no effort to secure employment. I am
cognizant of the fact that the
plaintiff communicated this to Ms
Masipa on 21 August 2019. However, if there had been a change
in his circumstances, I would
have expected the plaintiff to have
testified to that. He elected not to do so.
[88]
I accept that the plaintiff does have
limitations. However, the 2019 OT report does not present a
picture of an individual
whose limitations are so severe that he is
unable to work at all. Based on her findings referred to in
this paragraph and
paragraphs 42, 44 and 46 above, I am not persuaded
that the plaintiff is unemployable.
88.1.
The plaintiff was alert and fully
responsive throughout the assessment;
88.2.
was able to give accurate account of the
accident and was able to participate in all activities with adequate
effort;
88.3.
managed throughout the assessment to
understand questions posed to him and was able to answer them
appropriately;
88.4.
experiences pain in inclement weather;
88.5.
is unable to do heavy (as opposed to
moderate or light) maintenance work;
88.6.
suffers from occasional (as opposed to
frequent) headaches;
88.7.
could maintain a good sitting and standing
position, presented with good sitting and standing balance and was
found to have a good
dynamic balance;
88.8.
could, insofar as sitting and standing
endurance is concerned:
88.8.1.
complete all the tasks given to him during
the evaluation even though he presented with reduced physical
endurance;
88.8.2.
he tires after an
hour
;
88.8.3.
reported mild
pain
in
the right knee after sitting for an hour;
88.8.4.
was found to have good functional
capacity to perform day-to-day physical activities;
88.8.5.
his disability for lower back pain was
assessed to be 40% which symbolises moderate
disability
affecting his participation in activities of daily
life.
88.9.
The plaintiff experiences constant
throbbing pain in the right knee when performing elevated work and
constant throbbing pain in
the lower back when lifting, carrying,
kneeling, sitting and bending. He experiences frequent dull pain in
the right arm when lifting
and carrying objects with the right hand
and when doing elevated work. The pain is alleviated by rest.
88.10.
does not take medication for the management
of pain.
88.11.
The plaintiff will not have difficulty with
planning and executing motor movements as well as doing daily living
activities.
[89]
In my view and in the absence of evidence
to the contrary, the plaintiff has been unemployed not because he has
sought employment
and been rejected, but because he has not made any
attempts to secure employment. I am not persuaded that the
plaintiff is
unemployable.
[90]
Considering
that the plaintiff is just under 27 years old,
[19]
and the prospect that he would have achieved a NFQ Level 5
qualification may be too optimistic, a higher contingency deduction
for future premorbid loss of earnings is warranted. This will
also cater for the possibility that the plaintiff’s academic
performance could have been affected by various stressors. For
instance, the emotional distress suffered by the plaintiff
having
lost his mother at an early age, or that caused by the infrequent
contact with his father, and the instability brought about
by
relocating to another place. The severity of the distress or
the nature of the stressors could affect whether the plaintiff
attained the NFQ level 5 qualification at all or whether he attained
it much it much later than reasonably expected. A 20%
deduction
for contingencies in my view is therefore appropriate.
[91]
Insofar as post-morbid loss of earnings is
concerned, I cannot ignore the possibility that the plaintiff may
secure semi-sedentary,
light, or semi-skilled work type of work in
which he can take regular self-select movement breaks and alternate
between sitting,
standing and walking as needed, and where frequent
load handling is not
required.
In view of this and some residual earning capacity, a deduction of
20% for contingencies is fair and just in the
circumstances.
[92]
The plaintiff’s actuary has prepared
three reports. However, the assumptions on which the
plaintiff’s loss of
earnings has been calculated are not
consistent with my findings. The actuary is therefore required
to calculate the plaintiff’s
loss of earnings on the following
basis (allowing for the RAF cap, if applicable):
92.1.
Pre-morbid:
The
plaintiff would have obtained a NFQ Level 5 qualification. He
would have entered the labour market at a Paterson Grading
level A1
LQ earnings (basic salary). His earnings would have
progressed to the Paterson grading level B2 UQ earnings
(basic
salary), Corporate Survey Earnings (R Kock, 2017), Table 2.
[20]
A 20% deduction should be applied for contingencies.
92.2.
Post-morbid:
The
plaintiff is employed in the unskilled sector and his salary will not
go beyond the mid-quartile of unskilled workers as per
salary
guidelines for non-corporate workers in the open labour market.
[21]
A 20% deduction should be applied for contingencies.
[93]
Upon
receipt of the revised and updated actuarial calculations, the
plaintiff’s counsel is requested to prepare a draft order
reflecting the compensation for past and future loss of earnings.
In preparing the draft order it must be borne in mind that
the
compensation claimed in the amended particulars of claim is R3 500
000.00
[22]
. The
plaintiff is not entitled to compensation exceeding this amount.
Provision must also be made for the payment of
interest and costs,
which are to include the costs of 23 June to 25 June 2020.
[94]
Once the draft order is prepared and
received by me, I can be approached to make it an order of court.
S
K HASSIM AJ
Acting
Judge: Gauteng Division, Pretoria
28
May 2021
This judgment was
prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to
the plaintiff’s
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines.
The date for hand-down is
deemed to be 31 May 2021.
Date of hearing:
25 June 2020
Appearances:
Plaintiff:
Adv.
Desmond Mphahlele
Defendant:
No
appearance.
[1]
It
is described on the Caselines index as “Calculations based on
Joint Minutes”.
[2]
Dr
Chewane signed the Form RAF1.
[3]
The
report is undated. It was served on the plaintiff’s
attorneys on 17 February 2017.
[4]
Neither
reports have been uploaded to CaseLines.
[5]
Neither
of these reports have been uploaded to CaseLines.
[6]
CaseLines
033-268. The year of the assessment is reflected as “2019”.
The report was seemingly signed on 27
August 2018, a year before the
assessment. The filing sheet to which it was attached is dated
22 August 2019. The
report was served on 10 September 2019.
[7]
On
11 November 2015.
[8]
The
report was prepared on the letter head of Rixile Consulting (Pty)
Ltd. It bears Ms Nadira Mohamed’s electronic
signature
but is not dated. The report is attached to a filing notice
signed on 18 August 2017.
[9]
CaseLines
001A-27 to 001A-30
[10]
The
Dallas Pain Questionnaire.
[11]
A
test designed as a rapid screening instrument for mild cognitive
dysfunction. It assesses different cognitive
domains
:
attention and concentration, executive functions, memory, language,
visio construction skills, conceptual thinking, calculations
and
orientation. The total possible score is 30 points, a score of 26 or
above is considered normal and below it is abnormal.
[12]
“
The
Interrater
Reliability
of a Functional Capacity Evaluation: The Physical Work Performance
Evaluation
”
Marie Jośe Durand
et
al;
Journal
of Occupational Rehabilitation, Vol 14, No. 2, June 2004 p.119.
[13]
Marie
Jośe Durand
et
al
p.
120
[14]
1.
Strength
demand
:
Lifting:
raising
or lowering an object from one level to another.
Carrying:
transporting the object, usually holding it in their hand or arms.
Pushing
:
exerting force upon an object so that it moves away from the force.
Pulling
:
exerting force upon an object so that moves towards the force.
2.
Standing:
remaining on one's feet up right position without moving about
.
3.
Walking
: moving about on foot.
4.
Sitting:
remaining in a seated position.
5
Climbing:
ascending or descending ladders, stairs,
scaffolding, ramps, poles et cetera.
6.
Balancing
: maintaining body equilibrium to prevent falling.
7.
Kneeling:
bending the legs at the knee to come to rest on the
knees.
8.
Crawling:
moving about on hands and knees or hands and feet.
9.
Reaching
: extending arms and hands in any direction.
[15]
CaseLines:
p. 003-128: Joint Minute by Industrial Psychologist dated 31 August
2017. See also: CaseLines: 033-17, Report
of Industrial
Psychologist, Ms Mohamed, paragraph 7.1.6
[16]
CaseLines:
IP Joint Minutes, p. 033-127, para 1.5.
[17]
CaseLines:
p. 003-128: Joint Minute by Industrial Psychologist dated 31 August
2017. See also: CaseLines: 033-17, Report
of Industrial
Psychologist, Ms Mohamed, paragraph 7.1.6
[18]
[2012]
ZAGPJHC 161.
[19]
The
plaintiff was born on 2 September 1994.
[20]
CaseLines:
p. 003-128: Joint Minute by Industrial Psychologist dated 31 August
2017. See also: CaseLines: 033-17, Report
of Industrial
Psychologist, Ms Mohamed, paragraph 7.1.6.
[21]
CaseLines:
033-259 (p.18 of Mr Muleya’s report).
[22]
CaseLines:
004-5 and 004-004-6.