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[2019] ZAKZPHC 17
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Duma v Road Accident Fund (672/2014P) [2019] ZAKZPHC 17 (1 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case Number:
672/2014P
In
the matter between:
NDLELAHLE
VICTOR
DUMA
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
ORDER
(a) The
pre-morbid contingency is fixed at 7 per cent,
and
the post-morbid contingency is fixed at 7 per cent;
(b)
Costs to be costs in the cause.
JUDGMENT
Delivered
on 01 March 2019
Mbatha J
[1]
The plaintiff (Duma) was a pedestrian who sustained injuries, when a
motor vehicle
collided with him at or near Savannah Park, Durban, on
12 June 2012. As a result of the said collision, he suffered a mild
head
injury with neurocognitive fallout. The Road Accident Fund, as
the defendant, has conceded liability of the merits in the
plaintiff’s
favour.
[2]
The only issues for determination by this court are as follows: the
plaintiff’s
pre-morbid vocational potential; the contingencies
to be applied to his pre-morbid vocational potential; the plaintiff’s
pre-morbid retirement age; the plaintiff’s post-morbid
vocational potential; the plaintiff’s age, and according to the
defendant, whether the court should place reliance on the plaintiff’s
or defendant’s actuarial reports. Therefore the
only issues for
determination relate to the plaintiff’s past and future loss of
earnings.
[3]
The plaintiff called Dr Govender, a neurosurgeon, Ms Mtati, a
neuropsychologist, Ms
Pepu, an industrial psychologist, and Ms
Sewraj, an occupational therapist as expert witnesses in support of
his case. The expert
reports of Dr Govender and Ms Mtati have been
admitted by the defendant. The defendant led the evidence of Ms
Rahman, an employee
of Phambili Road Surfacing Construction
(Phambili) who testified as to the nature, status and type of work of
the plaintiff at
the company. The defendant also called Ms Krishna,
an industrial psychologist, in support of its case. The two
industrial psychologists
also filed a joint minute.
[4]
It was the plaintiff’s contention that he has no residual
earning potential,
based on his pre-morbid earning potential, in line
with the report filed by Ms Pepu, her evidence, and the joint minute
filed with
her counterpart, Ms Krishna. Ms Pepu found that the
plaintiff would likely have continued working in the capacity of a
general
worker, earning an average salary of R5 824.87 per
month, which would have translated to R68 898.75 per annum; that
he
would likely have benefited from an annual bonus; that his salary
was equivalent to A1, 25
th
percentile, total package as
per Koch, Corporate Earnings 2012; that given his age of 47 at the
time of the accident, it seemed
unlikely that he would have taken up
on the job training opportunities to qualify for progression
opportunities in his career;
that his salary progression was likely
to have been on an annual inflationary basis; and that he would have
continued working till
the normal retirement age of 65 years.
[5]
Ms Pepu concluded that post the accident, it was likely that the
plaintiff would remain
unemployed until the normal retirement age of
65 years. As a result thereof, a total loss of earnings will be
associated with post-morbid
potential. It was her evidence that from
July 2012 to date, the plaintiff has remained unemployed, was 54
years old, only had a
grade eight (8) level of education, had no
special skills and his current medical skills are factors that she
took into account
in arriving to the conclusion that he was
unemployable.
[6]
Ms Krishna, in the joint minute with Ms Pepu based on their
respective reports, found
that the plaintiff may have in all
likelihood continued as a rakerman in the construction industry with
intermittent and natural
progression until the retirement age of 65.
She was guided by the Bargaining Council for the Civil Engineering
Industry (BCCEI)
in concluding that he may have been afforded
progression as per negotiated earnings. She opined that
post-morbidly, the plaintiff
is challenged as he retained physical
deficits and subjective reports of headaches and nosebleeds. She
noted that although she
took into account the medical expert reports
of Dr Govender, the plaintiff may still secure employment in a light
unskilled work
on sympathetic, compassionate, and reasonable
accommodation, whilst also managing his medical challenges. She took
cognisance of
the fact that the epileptic seizures were subjective as
they were only mentioned by the plaintiff’s wife and son. She
surmised
that the plaintiff, in the employment of a sympathetic
employer, and despite the pain from the head injury, should have a
higher
contingency applied due to possible periods of unemployment
and light category employment. She then set out the table
according
to the BCCEI (2017) and KOCH (2017), reflecting the
pre-morbid earning potential probability.
[7]
I turn to the evidence of Ms Sewraj, the occupational therapist
called by the plaintiff,
who examined the plaintiff in relation to
his impairments affecting his visual perceptive skills, which she
found to be below average.
His mathematical skills were found to be
inadequate in terms of speed and ability, which the plaintiff
attributed to his inability
to see clearly, which occurred after the
accident. The plaintiff had complained to her of pain in his
left arm and she found
his motor integration to be below the standard
scale score. The deficiencies had an impact on his ability to
carry out general
activities which required him to use his left arm.
He had difficulty in perform weightlifting activities. This
presented
problems as his employment required him to do manual labour
on roads, using spades, jackhammers and other working instruments.
The nature of the work that the plaintiff was engaged in exposed him
to the elements like the sun, which exacerbated his nosebleeds
and
headaches. This had an impact on his productivity,
concentration and added to his cognitive fallouts. Ms Sewraj
also observed that the plaintiff was more reserved than normal, and
learnt that he felt useless as he could not actively participate
in
work.
[8]
In conclusion, she found that due to the plaintiff cognitive
fallouts, he was disadvantaged
and no longer in a position to secure
employment in an open labour market. She also recognised that
he was further placed
at a disadvantage due to the high rate of
unemployment, and the competition with young able bodied persons for
employment.
[9]
The evidence of Ms Mtati, a neuropsychologist called by the
plaintiff, showed that
the plaintiff suffered significant
neurocognitive deficits which were indicative of a brain injury.
She identified that he
would have difficulty remembering information
requiring substantial levels of attention and concentration, that his
short term
memory was impaired and that he functioned at a below
average range on SPM post-morbidly. She found that his memory
and learning
capacity were impaired, and that there was visual
impairment which affected his visual scanning and visual attention.
The
speed within which he processed information was affected to a
point that his ability to perform cognitive tasks, automatically and
under pressure to remain focussed, was impaired. He presented
with limited ability to perform more than one information processing
task simultaneously. He did not perform well on tasks that required
planning. The plaintiff also presented with depression. She
opined
that since he presented with cognitive impairments as well as
physical and psychological difficulties, many neuro-cognitive
deficiencies were likely to persist even though counselling may
ameliorate his condition.
[10]
Dr Govender, a neurosurgeon called by the plaintiff, testified that
the plaintiff had reported
to him that he suffered from chronic
headaches, poor memory, poor concentration and pain in the left
wrist, shoulder and ankle.
Dr Govender confirmed that the
plaintiff suffered a mild head injury with neurocognitive fallout.
[11]
Ms Pepu, the industrial psychiatrist called by the plaintiff, also
gave evidence as an expert
witness. Her evidence revealed that
the plaintiff reported to her that after the accident he suffered
from constant headaches,
nosebleeds, pain, was struggling to carry
heavy objects and was unable to walk for very long distances.
She assessed that
with a whole person impairment of 15 per cent,
there were no employment positions that could be productively
occupied by the plaintiff.
Besides the high rate of
unemployment, the plaintiff was compromised by his age, lack of
education and lack of specialised skills
to secure employment.
[12]
She found that but for the accident, he would have remained employed
at Phambili, where he earned
R5 900 per month. She opined that
it was impossible post the accident, given his age of 47 at the time
of the accident, to
be considered for any job training. He
would only have been entitled to a yearly inflationary increase until
he reached the
retirement age of 65. Post-morbidly, her findings were
that although he returned to work after about two weeks’ sick
leave,
he lost overtime pay, which averaged at R1 000 per month, and
thereafter the total loss of earnings from July 2012 to date.
Her evidence was that there was no place in the current market for a
cushioned job or sympathetic employment. At the
age of 54
years, with limited skills, work experience and lack of good
education, the prospects of him finding employment were
nil.
[13]
The defendant called Ms Rahman, who was employed at the human
resource department at Phambili
during the period of July 2012.
She described the capacity in which the plaintiff was employed as
rakerman, which was a level
higher than that of a general labourer.
Basically, his job was to rake the gravel and loose stones on the
road. He
was paid a fixed monthly basic salary and was entitled
to overtime pay. The company used a policy of no-work, no-pay
if no
doctor’s certificate was produced. She confirmed
that as of 30 November 2010, the plaintiff’s hourly rate was
R19.622. This rate was then multiplied by the number of hours
worked which translated to his monthly salary. In November
2010
the plaintiff’s payslip reflected that he worked 21.67 days,
and earned R3 826, which was computed as follows: R19.622
x nine (9)
hours per day x 21.67 days. She testified that the deductions
which appeared on the payslip were for days not
worked by the
plaintiff, UIF (Unemployment Insurance Fund) and a living allowance.
This left the plaintiff with a nett income
of R3 519.
[14]
For the period of March 2012, he earned a basic income of R4 132.48,
which was inclusive of the
annual increase and overtime of R1 382.79,
and after deductions, amounted to R4 512.21. For the period of
May 2012, he earned
a basic salary of R4 132.48, overtime of R1
382.79 and double time. His total earnings for May 2012 were R5
824.87.
In June 2012, the plaintiff’s basic salary was R4
132.48 and the total earnings were R4 397.99. She
confirmed
that the plaintiff left Phambili in July 2012.
[15]
The industrial psychologist, Ms Krishna, who was an expert witness
for the defendant, calculated
and placed the plaintiff’s salary
at R4 132 per month. She made this assessment on the
information from the two payslips
that were made available to her by
the defendant. Her findings were that the plaintiff would have
continued to work as a
rakerman with intermittent and natural
progression until the retirement age of 65. The progression
would have been in line
with the BCCEI’s negotiated rates.
She testified that post-morbidly, the plaintiff could still be
employed by a sympathetic
employer in the unskilled market. She
therefore recommended that a higher contingency be applied to his
post-morbid earnings.
[16]
It is common cause that the plaintiff was 47 years old at the time of
the accident, has a grade
8 education, was previously employed as a
rakerman by Phambili and that he has been unemployed since
2012. Based on the joint
minutes of the industrial psychologists,
both parties have obtained actuarial calculations regarding the
plaintiff’s future
loss of earnings and/or earning ability.
[17]
The court, in determining a fair and reasonable compensation for loss
of income or earning capacity,
has a wide discretion which needs to
be exercised judicially. In the
Road
Accident Fund v Guedes
[1]
the court states as follows:
‘
It is trite
that a person is entitled to be compensated to the extent that the
person’s patrimony has been diminished in consequence
of
another’s negligence. Such damages include loss of future
earning capacity (see for example
President
Insurance Co Ltd v Mathews).
[2]
The calculation of the
quantum
of a future amount, such as loss of earning capacity, is not, as I
have already indicated, a matter of exact mathematical calculation.
By its nature, such an enquiry is speculative and a court can
therefore only make an estimate of the present value of the loss
that
is often a very rough estimate (see, for example,
Southern
Insurance Association Ltd v Bailey NO)
.
[3]
The court necessarily exercises a wide discretion when it assesses
the
quantum
of damages due to loss of earning capacity and has a large discretion
to award what it considers right. Courts have adopted the
approach
that, in order to assist in such a calculation, an actuarial
computation is a useful basis for establishing the
quantum
of damages. Even then, the trial Court has a wide discretion to award
what it believes is just (see, for example, the
Bailey
case
[4]
and
Van
der Plaats v South African Mutual Fire and General Insurance Co
Ltd).
[5]
’
[18]
Based largely on the admitted reports of two of the plaintiff’s
expert witnesses, namely
Dr Govender and Ms Mtati, the court accepts
that the plaintiff suffered significant neurocognitive deficits
indicative of a brain
injury. The reports show that prior to the
accident, the plaintiff did not suffer from nose bleeds, headaches,
pain in the left
arm and left leg and had no dizzy spells, and that
upon resumption of work he was unable to perform his duties due to
the injury
which caused him pain and was aggravated by chronic
headaches. The findings being thus that had the accident not
occurred, the
plaintiff would adequately have performed his duties as
a rakerman.
[19]
It was submitted on behalf of the plaintiff that Dr Govender’s
and Ms Mtati’s reports
were admitted by the defendant. This
remained the undisputed evidence of the plaintiff as to the nature of
his ailments. This was
against the background that the defendant
challenged the legitimacy of the nature of the injuries and their
effect on the plaintiff.
The defendant has not furnished this court
with evidence to the contrary. I accept the submission made on behalf
of the plaintiff
that if the defendant had doubt as to the legitimacy
of the complaints by the plaintiff, it had ample time and resources
to have
conducted its own investigations, and to produce counter
expert evidence.
[20]
It is clear to the court that the plaintiff presented the same
complaints to all the expert witnesses
that he consulted with,
including those of the defendant. Ms Mtati and Dr Govender clearly
set out the extent of the neurocognitive
injury sustained by the
plaintiff. The plaintiff was also assessed by Ms Sewraj, an
occupational therapist, whose evidence was
that it was very much
unlikely that the plaintiff would find employment in the open labour
market post-morbidly.
[21]
Ms Pepu, as an expert on the employability of the plaintiff,
considered Dr Govender’s,
Ms Sewraj’s and Ms Mtati’s
reports as to whether the plaintiff was employable post-morbidly. Her
findings were that
due to the injuries that he sustained, his age,
and cognitive deficiencies, it was unlikely that he would find any
employment post-morbidly.
[22]
The defendant, having accepted the reports of Dr Govender and Ms
Mtati that the plaintiff suffered
from chronic headaches, poor memory
and concentration, and pain in the left wrist, shoulder and ankle,
then submitted that these
complaints were subjective, not confirmed
by medical tests, and that the extent of the plaintiff’s head
injury was not confirmed
by an MRI scan as per the recommendations of
Dr Govender. This was also stated against the conclusive findings by
Dr Govender that
the plaintiff suffered a mild head injury with
neurocognitive fall out, which findings were accepted by the
defendant. It was further
submitted on behalf of the defendant that
these findings were not confirmed by the plaintiff as he did not
testify in the trial.
This is an unfair criticism, as the plaintiff
had given the same report of complaints to various experts, including
those of the
defendant. I cannot find why his failure to testify
would have made the complaints not subjective as he would have
repeated the
same complaints. Dr Krishna, an expert witness for the
defendant, recorded a severe prognosis of the injuries, including
seizures
and nose bleeds. Nothing prevented the defendant, in light
of the findings by Dr Krishna, with the resources available to it, to
have these complaints investigated by various experts. The evidence
of Dr Govender, whose report has been accepted by the defendant,
is
the only medical evidence before this court.
[23]
The defendant also challenged the report of Ms Mtati, whose findings
had been accepted by it,
on the complaints suffered by the plaintiff.
The defendant refers to Ms Mtati’s report, which classifies his
impairment as
‘Class 3 – Moderate impairment –
cannot work at all in the same position, can perform less than 20
hours per
week in a different position that requires less skill or is
qualitatively different ie less stressful’. It is suggested
that
this meant that post-morbidly he is still capable of employment.
This was read in isolation from her findings that her neurocognitive
tests showed deficits, in line with a brain injury with the decline
in neurocognitive abilities, which she found to be serious
impairments as they relate to memory and thinking skills, and that
these have an effect on the way the person functions on a daily
basis. It is clear from Ms Mtati’s findings that the mild head
injury suffered by the plaintiff had an effect on his physical,
emotional and mental development. I accept that Ms Mtati did not
state that he was in a ‘vegetative state’ but found
him
incapable of functioning normally in a work place. Ms Mtati, as far
as the employability of the plaintiff is concerned, deferred
to the
opinion of an industrial psychologist. It was not within her
expertise to decide whether he was employable or not.
It was suggested that the
plaintiff has not availed himself to psychotherapy and physiotherapy,
as suggested by the experts who
examined him. This is all said
against the backdrop of an unemployed person, who has no access to
free expert treatment save for
a basic health system available to
him, and who has no resources for such treatments, which are
considered to be secondary treatment.
It is in the defendant’s
expert’s report that the plaintiff was collecting analgesics
from the hospital, thus he was
not merely sitting at home but gave
attention to his ailments. This was the only primary healthcare
service provided to him.
[24]
Ms Sewraj’s report and evidence was also challenged on the
basis that the reports of pain,
nose bleeds and seizures were not
corroborated by medical evidence. The fact that Dr Govender
recommended that a neurologist should
evaluate the complaints
of the plaintiff this, does not necessarily mean that such complaints
were fictitious. To this court, it
shows that a neurosurgeon took
this so seriously that he recommended expert evaluation. Ms Sewraj
recommended that an Ear Nose
and Throat (ENT) specialist as well as a
psychiatrist evaluate the plaintiff. These are serous contentions
raised by the experts.
[25]
Ms Sewraj spoke to the plaintiff in isiZulu. She confirmed that she
had done a course in isiZulu
to enable her to communicate with
clients. She conducted various tests and personally assessed the
plaintiff. If the defendant
doubted the correctness of any expert
reports, it had ample time to refer the plaintiff to all the experts
recommended by either
Dr Govender, or Ms Mtati or Ms Sewraj. The
defendant has not furnished any counter evidence in rebuttal, save to
challenge what
should have further been done by the plaintiff.
[26]
This court ruled that the reason for the plaintiff leaving his
employment should not form part
of the trial. The suggestion that Ms
Sewraj failed to enquire why the plaintiff left his employment is
misplaced as he only consulted
with him four years after he left his
employment. Occupational therapists use therapeutic means to help
injured persons develop,
improve, recover, and maintain skills needed
for daily living and working and not establish why they left
employment. The submission
was made on behalf of the defendant that
the use of the words ‘diminished’, ‘reduced’
and ‘disadvantaged’
by Ms Sewraj meant that the plaintiff
could still be employable. This is outside the domain of Ms Sewraj
expertise. Ms Sewraj categorically
deferred to the expert opinion of
an industrial psychologist in so far as the employability of the
plaintiff was concerned. I cannot
understand why the defendant has
come to the conclusion that to be deemed unemployable, the plaintiff
has to be in a ‘vegetative
state’ and that the diminished
physical and mental ability to work should be viewed in isolation
from other relevant factors.
[27]
The defendant challenged the evidence of Ms Pepu, the industrial
psychologist, on a number of
issues, including:
(a)
That she calculated the plaintiff’s pre-morbid earnings in line
with Koch’s
Corporate Earnings Survey as opposed to Ms
Krishna’s calculations which were in line with the BCCEI, as
confirmed by Ms Rahman;
(b)
That Ms Pepu should not have pegged the plaintiff’s pre-morbid
earnings within the
Koch A1, 25
th
percentile range, at
R5 824 per month, translating to R69 000 per annum, as she
only relied on the earnings of May 2012,
which did not represent an
average of income; the overtime was not fixed and she had assumed
that it was productive based; and
that she ought to have excluded the
‘night on tax’ (night work allowance);
It was submitted that the
correct calculations are those of the defendant’s expert
witness, Ms Krishna. Ms Krishna’s
calculations for pre-morbid
loss were based on the basic salary only. It was suggested that this
should be accepted as the payslips
for the 12 month period were not
available;
[28]
It was further submitted on behalf of the defendant that a higher
than normal contingency should
apply to the plaintiff’s
pre-morbid future earnings, as it transpired that between 1991 to
1999, 2007 and 1991 to 2012 and
1991 to 1999 the plaintiff had been
unemployed and then again in 2007, representing a period of ten years
of unemployment; that
Ms Pepu’s findings were inconsistent with
the recommendations of Ms Mtati, who found that the plaintiff still
had the capacity
to work in a different level, which required less
skill and is less stressful; and that Ms Pepu failed to verify the
subjective
complaints of the plaintiff as there was no reports from a
neurologist, and a physiotherapist. It was suggested that the lack of
such collateral evidence could not assist Ms Pepu in ter
determination of whether the plaintiff was employable or not.
[28]
It is trite that an expert witness is a witness for the court. An
expert witness is called upon
to assist the court in technical and
scientific issues. He or she must give an honest opinion, remain
impartial, and objective.
The evidence given by such a witness should
be for the assistance of the court, be relevant, and of probative
value. The objectivity
of the expert witness is required and the
courts frown upon any form of conscious bias where the expert witness
adopts the evidence
to the needs of a client.
[6]
[29]
Experts often provide a joint minute, which highlight the issues of
concurrence and disputes
between the two expert witnesses, as was
done in this case. In consideration of the expert industrial
psychologist reports and
testimonies, I have taken into account the
undisputed facts, ie that the plaintiff suffered a mild head injury;
it remained uncontested
that he had never suffered a head injury
before the accident; he did not suffer from any seizures, nose bleeds
and headaches; and
had no arm or leg injury before the accident. It
was also uncontested that he returned to work after the accident;
that he struggled
to cope with work due to blurry visions, nose
bleeds and headaches, which were aggravated by exposure to the
elements on the road
where he worked as a rakerman. He
underperformed, which put him at cross roads with his supervisor,
resulting in his dismissal.
This court has also taken into account
that he had been employed in a permanent position when the accident
occurred in 2012; that
he would have remained employed until the
retirement age of 65 years; and would have been entitled to annual
inflationary increments.
[30]
This court has to bear in mind that compensation should be to the
extent that the plaintiff’s
patrimony has been diminished as a
result of the other party’s negligence, and that such damages
are to include loss of future
earning capacity.
[7]
I have also considered that the calculation of the quantum of a
future amount, such as loss of earning capacity, is not a matter
of
an exact mathematical calculation, and a court can make an estimate
of the present value of loss which is often a very rough
estimate.
The court exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity, and has
a large discretion
to award what it considers right. Though courts rely on actuarial
computations, it still exercises a wide discretion
as to what is
just.
[8]
It is trite that the court does not take into consideration
irrelevant facts, should not be too generous in making a contingency
allowance, and should have a sound basis for the award.
[31]
Ms Pepu explained why she assessed the plaintiff’s earnings
using the Koch Index. She described
the plaintiff as falling under a
Job Grade 4 which equates to what the BCCEI rates as
Paterson A1. The main issue was
what the earnings of the plaintiff
were. Both experts accepted that the plaintiff’s employment was
slightly above that of
a general labourer. The pre-morbid earnings
were calculated by both experts on what they considered to be his
monthly pay.
Ms Pepu had access to
four payslips, which reflected the basic earnings, Sundays worked,
night on tax and overtime. Ms Krishna worked
out her calculations on
the basis of two payslips, despite the defendant having had access to
Ms Rahman, a human resource employee
from Phambili. Phambili could
also not provide the witnesses with payslips for the 12 month period.
Therefore, a just and reasonable
approach should be adopted by the
court. The court should accept the calculations which do not
prejudice the plaintiff. Pre-morbidly
it has not been shown that the
plaintiff was excluded from overtime, Sunday extra work, night on tax
and an annual bonus. This
information appears from the four payslips
provided by the plaintiff and the evidence of Ms Pepu.
[32]
In 2012 when the plaintiff suffered injuries, there was no indication
that he would have lost
employment, as he was in a permanent
position. Ms Pepu explained that he had previously lost employment
due to retrenchment and
the violence which engulfed the entire
country before 1994. As Phambili was a JSE listed company, there is a
greater probability
that he would have retained employment until
retirement age.
[33]
Ms Krishna’s evidence was not satisfactory: she based her
findings on two payslips, and
in doing so, she excluded the plaintiff
from the benefits that he may have been entitled to, like overtime.
She opined that the
plaintiff could be employed as a security guard
at a boom gate, serve as a parcel counter attendant, run a tuckshop
and that he
needed a sympathetic employer to do such work. This was
said against the backdrop of the head injury suffered by the
plaintiff,
which has left him with significant neurocognitive
deficits indicative of a brain injury, the chronic ailments,
including headaches,
dizzy spells and nose bleeds, the advanced age
of 54, and the lack of education and skills on the part of the
plaintiff. Whereas
Ms Pepu, in addition to considering the
plaintiff’s ailments, took cognisance that the plaintiff can no
longer compete in
an open labour market with graduates, able bodied
persons his age, and that there was no sheltered employment available
as advocated
by Ms Krishna.
[34]
For the purpose of assessment of income, it was apparent that there
was no further information
available to the experts for the
assessment of the monthly benefits due to the plaintiff.
However, the four payslips that
Ms Pepu relied upon as a source of
computation, is the best evidence available and the court must accept
it and the conclusions
based on it. The court in
Esso
Standards SA (Pty) LTD v Katz
[9]
held that ‘. . . .where the best evidence available has been
produced, though it is not entirely of a conclusive character
and
does not permit of a mathematical calculation of the damages
suffered, still, if it is the best evidence available, the Court
must
use it and arrive at a conclusion based on it.’
I therefore accept the
calculations for loss of income as calculated by Ms Pepu in line with
the four payslips, which include all
the benefits that the plaintiff
would have been entitled to.
[35]
The undisputed evidence before this court is that the plaintiff
suffered a mild head injury with
neuro-cognitive fallout and that he
would have continued with his employment until retirement.
Post-morbidly, the plaintiff
has earned no income and the court has
to determine his future loss of income.
Contingencies
:
[36]
It is trite that general contingencies cover a wide range of
considerations, which vary from
case to case.
[10]
It has generally been accepted that contingencies of 5 per cent to 15
per cent for past and future loss of income have been accepted
as
‘normal contingencies’.
[11]
A number of issues are considered when an actuarial assessment is
done, including considerations of early death, promotion prospects,
and taxes.
[37]
The factors which have an impact on the consideration of the
calculation of the contingencies
include the age of the plaintiff who
was 54 at the time of assessment. The defendant maintained that
the plaintiff could
still be employed by an accommodative employer
and that this should qualify for a higher contingency. This is
said against
the background of the high unemployment rate in South
Africa, even in the skilled employment sector, that he would have to
compete
in a job market with younger abled bodied persons who were
even better qualified than him, that he is not trainable in any new
skills due to lack of education and the head injury he sustained.
[38]
In any claim for future loss of earning capacity, a comparison is
required of what Duma would
have earned but for the accident, with
what he would have likely earned thereafter. As I stated
earlier on, this is a subjective
or speculative enquiry. The
court makes an estimate of the present value of the loss.
[12]
The calculations made by the actuary are often depended on the
factual information provided by various witnesses. Therefore,
different contingencies are made in respect of pre-morbid and
post-morbid calculations. Contingencies are arbitrary and
subjective. In
Goodall
v President Insurance Co Ltd
[13]
the court stated as follows:
‘
In the
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanack,
is not numbered among the qualifications for judicial office.’
Therefore this gives a court a wide discretion
when it determines
contingencies.
[39]
Factors such as a young age create a ‘greater uncertainty in
assessing the claimant’s
likely career path’.
[14]
A younger person has a longer period over which the vicissitudes of
life will operate and greater uncertainty in assessing his
career
path. However, with regard to the plaintiff, at his age and
taking his personal circumstances into account, his future
is more
determinable in terms of his career path.
[40]
The contingencies provided by the experts need to be considered by
the court. This court
has taken into account the role of an
expert witness. Their opinions should be reliable, as should
the facts upon which they
rely upon for such information. The
facts cannot just be accepted because they are provided by an expert
witness; the court
should actively evaluate the evidence and not
abdicate its responsibility.
[15]
Expert evidence should be independent and pass the impartiality
rule. An expert should not adapt the evidence
to meet the
client’s needs. An expert is there to guide the court and
objectivity is required by the expert.
[41]
This takes me to the evidence of Ms Krishna, the industrial
psychologist. I have had difficulty
with the evidence of Ms Krishna
whose opinion was that the plaintiff still has residual earning
capacity. This was said against
the backdrop that since the
plaintiff was injured in the accident, at the age of 47, he has
remained unemployed. She testified
that despite the chronic
ailments which occurred as a result of the accident, he can still
operate a boom gate and lift parcels
in a shop. This was said
contrary to the reports filed by Dr Govender, Ms Mtati and Ms Sewraj
as to his mental challenges
and physical capabilities. Ms
Krishna also testified that he can run ‘a spaza shop’,
which is an unlicensed tuckshop
run from home. This was stated
without any knowledge on whether there is a tuckshop in the vicinity
where plaintiff lives, and
against the expert evidence that he has
difficulty with mathematical calculations.
[42]
The defendant, who engaged the services of Ms Krishna, has provided
no expert evidence to counter
the evidence of Mr Mtati, Ms Sewraj and
Dr Govender, whose reports were also accepted by the defendant.
There is no evidence
before this court which could persuade this
court to apply a higher contingency deduction to accommodate any
residual earning capacity.
Ms Krishna’s assessment was totally
flawed as the evidence suggests a definite loss of income. She could
not convince the
court of the reliability of her opinion as she
struggled even to interview the plaintiff. It became quite
clear that there
was a language barrier between the plaintiff and Ms
Krishna. The information which she claimed she received
telephonically
from plaintiff’s wife and son, leaves a lot to
be desired as she did not use the services of an interpreter.
Ms Krishna
left the court with an impression that she wanted to be
believed to be superior to Ms Pepu, as she alluded to being busy with
a
PhD, when she has not registered with any institution to pursue her
PhD.
[43]
Under cross-examination, it became apparent that Ms Krishna could not
describe to the court what
she meant by ‘accommodative
employment’ in the case of the plaintiff. This kind of
testimony was given to support the
defendant and not to guide the
court. I say this because she gave the statistics of the unemployed
skilled and unskilled persons
in South Africa, whilst professing that
the plaintiff could still be employed. She finally conceded
that the plaintiff would
not find employment. Her lack of
professionalism was also questioned during cross-examination when it
was pointed out that she
did not personally conduct the tests. She
admitted having an ‘intern’ with her whom she later on
described as an administrative
assistant.
[44]
None of the expert reports are suggestive that the plaintiff can find
employment in the open
market. In the case where the claimant
is precluded from permanently earning any income, it is my view that
such a claimant
should be entitled to recover all such future loss
from the defendant. Further income is determined by
establishing what
the claimant would have earned but for the
accident. Income at the date of the accident often serves as
the basis for such
a calculation, taking into account future
increases.
[45]
This court has considered that at the time of the accident, the
plaintiff was permanently employed
and had been so employed since
2010, and there was no likelihood of him losing his employment.
His employment record shows
periods of unemployment which were due to
factors beyond his control, and not due to abscondment or any other
unsatisfactory service
record. Ms Pepu’s opinion was that
this did not entitle the defendant to suggest that a higher than
normal contingency
should apply to his pre-morbid earnings. I
agree with her, as the plaintiff had been in employment for a period
of over three
years, and nothing suggests that he would not have
retired at the age of 65 years. Normal contingencies should
apply to his
pre-morbid earnings.
[46]
This court accepts that the plaintiff is incapable of assuming any
form of employment due to
physical and mental difficulties presented
by the plaintiff. There is no evidence that suggests that he
would be responsive
to treatment that would lead to a complete
recovery.
[47]
Although the industrial psychologists used different methods of
calculations, this court is inclined
to accept Ms Pepu’s
calculations as they are supported by evidence. Ms Pepu’s
testimony was supported by the sectoral
determination for the civil
engineering sector,
[16]
which indicated that employees in the civil engineering sector, where
the plaintiff was employed in, were entitled to an annual
bonus. She
also showed that the four payslips showed times where the plaintiff
was paid for working outside the normal hours as
well as overtime,
unlike the calculations of Ms Krishna, which ‘creamed off’
the benefits due to the plaintiff. Ms
Pepu’s assessments
provided the court with a sound factual basis from which she
formulated her opinions. She was an impressive
witness who proffered
‘no comment’ answers when a question was tendered to the
challenge the credibility or competency
of her colleague, Ms Krishna.
The court found this remarkable as it showed that she was there to
assist the court and not to compete
with her colleague.
[48]
Ms Pepu’s testimony was characterised by a logical
consideration of the factual basis provided
by her on what the future
holds for the plaintiff. In that regard I find her evidence, and line
of reasoning, which remained unshaken,
to be sound. I accept her
evidence in totality. The uncontested evidence of the expert
witnesses for the plaintiff indicates
that there are no prospects of
the plaintiff ever finding employment. Having ruled that the evidence
of Ms Krishna was tainted
by bias and lacked objectivity, I have
considered the calculations by the actuary based on the findings of
Ms Pepu, as per Exhibit
C.
[49]
In
Goodall,
a 10% deduction was applied to a 46 year old
plaintiff. If one applies the approach adopted in
Goodall
to a
54 year old, at the trial stage, 7 per cent would be appropriate,
fair and reasonable.
[51]
The actuarial report, in determining the
pre-morbid earnings, took into account
that the plaintiff was
employed as a general worker at Phambili, and that the average
amounts taken from the available payslips
were used to estimate his
earnings as from the date of employment. The post-morbid earnings of
the plaintiff were considered on
the basis that he was unemployable,
would have retired at 65 years, and that life expectancy was not
affected by the accident.
The nett discounted rate, income tax
deductions, mortality from the date of accident, AIDS, social grants,
Compensation for Occupational
Injuries and Diseases Act 130 of 1993
benefits, and the Unemployment Insurance Fund Act 63 of 2001 benefits
were considered by
the actuary.
[53]
The basis of the court’s determination of
the 7 per cent pre-morbid
and post-morbid contingency is driven by
the following factors: that the plaintiff had no adverse health
conditions, and to compensate
for the total loss of earning capacity
as nothing showed that he would not have worked until the age of 65
years.
[54]
Accordingly, the following order is made:
(a) The pre-morbid
contingency is fixed at 7 per cent and the post-morbid
contingency
is fixed at 7 per cent;
(b) Costs to be costs in
the cause.
__________________
Mbatha
J
Date
of Hearing:
10
December 2018
Date
of Judgment:
01 March 2019
Appearances
For
Plaintiff:
Adv RBG Choudree SC
Adv ML
Bahadur
Instructed
by:
PG NAIDOO & ASSOCIATES INC
5A The Ridge Building
8 Torsvale Crescent
Umhlanga
For
the Defendant:
Adv AR Khan
Instructed
by:
GOVINDSAMY, NDZINGI & GOVENDER INC
211 Burger Street
Pietermaritzburg
[1]
Road Accident Fund v Guedes
2006 (5) SA 583
SCA at 586H-587B.
[2]
President Insurance Co Ltd v
Mathews
1992 (1) SA 1
(A)
at 5C-E.
[3]
Southern Insurance Association Ltd
v Bailey NO
1984 (1) SA 98
(A).
[4]
Southern Insurance Association
fn3 at 116G-117A.
[5]
Van der Plaats v South African
Mutual Fire and General Insurance Co Ltd
1980 (3) SA 105
(A) at 114F-115D.
[6]
Jacobs & Another v Transnet
Ltd t/a Metrorail
2015 (1)
SA 139 (SCA).
[7]
President Insurance Co Ltd
fn2.
[8]
Road Accident Fund
fn1 at 587B.
[9]
Esso Standards SA (Pty) LTD v Katz
1981 (1) SA 964
(A) at 969F-G.
[10]
RH
Koch
The Quantum Yearbook
(2015) at 120.
[11]
RH
Koch
The Quantum Yearbook
(2015) at 120.
[12]
Southern
Insurance Association
fn3
at 113G-H
.
[13]
Goodall v President Insurance Co
Ltd
1978 (1) SA 389
(W) at 392H – 393A.
[14]
BEE v Road Accident Fund
2018
(4) SA 366
(SCA) para 116.
[15]
Twine & Another v Naidoo &
Others
[2018] 1 All SA 297
(GJ) para 18.
[16]
Sectoral Determination 2: Civil
Engineering Sector, South Africa, GN R204, GG22103, 2 March 2001.