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[2018] ZAFSHC 125
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Huijink-Maritz v Municipal Manager: Matjhabeng Local Municipality (3932/2015) [2018] ZAFSHC 125 (14 August 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3932/2015
In
the matter between:
K
M
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
HEARD
ON:
22
JUNE 2018
JUDGMENT
BY:
LEFENYA,
AJ
DELIVERED
ON:
14
AUGUST 2018
Introduction
[1]
This is an action arising from injuries the plaintiff
sustained on 17 January 2013 in Bloemfontein in a motor
vehicle collision. She was a pedestrian. At the time of the accident
she
was a 30 year old Secondary School educator. The plaintiff, who
was seriously injured, sustained the following injuries;
1.
Head
injuries
2.
Thoracic
spinal fracture
3.
Right
forearm injury
4.
Right ankle
/ leg injury
[2]
The parties had, before the trial, settled the issue of liability on
the basis that the defendant will pay the plaintiff 100%
of the
agreed or proven damages as well as the aspect of quantum in relation
to past medical expenses. At the beginning of the
trial the parties
further agreed to the amount of R650 000, 00 as the award for general
damages to the plaintiff. The defendant
further made an undertaking
in terms of
section 17
(4)(a) of the
Road Accident Fund Act 56 of
1996
to provide for the plaintiff’s future medical expenses.
[3]
The only unresolved issue for determination is therefore in respect
of the plaintiff’s loss of future earning capacity.
Counsel for
the plaintiff argued, basing this on the experts reports, that the
plaintiff is likely to retire at an earlier age
of 45 years therefore
the appropriate amount to award her is R3 926 280- 00 . Counsel
for the defendant on the other hand
argued differently that the
correct amount to be awarded the plaintiff is R 612 900-00 for future
loss of income.
[4]
The plaintiff testified in her case, called a qualified industrial
psychologist Ms. Van Jaarsveld and also the plaintiff’s
ex-colleague Ms. Hannah Nikelo. The defendant closed its case without
calling any witness. A bundle of several experts’ reports
was
submitted as exhibit “A” together with a further
actuarial report as exhibit “B”.
Evidence
[5]
The 3 witnesses
testified
as follows;
Plaintiff
The
plaintiff testified that prior to the accident she taught Science and
Mathematics to Grades 11 and 12. After the accident, due
to her
limited abilities, she started teaching Grades 6 and 7 and also
changed schools and moved to a school closer to her home.
This
according to her was to enable her to cope with her workload. She
testified that she still has problems with her back as she
experiences pains on the lower and upper back. She further testified
that because of the injuries that she sustained in the motor
vehicle
accident she struggles with pains on her left leg as a result of
which she cannot stand for a long period of time. Her
evidence was
further that after the accident, when the weather is cold she felt
more pains. She also testified that after the accident
she lacked
confidence in herself and doubted her abilities and capabilities
which was not the position before. This even made her
fail to apply
for the position of Head of the Department at her school which was
available at some stage. She explained that she
had memory loss after
the accident and she described how she was trying to deal with it.
Ms.
Van Jaarsveld
Ms.
Van Jaarsveld is a qualified industrial psychologist with extensive
experience in her field. Her duties involve making
assessments
of people injured in motor vehicle accidents and compiling reports
for both plaintiffs and the Road Accident Fund (RAF).
She testified
that she assessed the plaintiff on 24 February 2017. Her assessment
of the plaintiff was based on the interview with
the plaintiff and
further based this on medical reports that she received from doctors
who had examined the plaintiff. She did
not do the psychometric
assessment because the plaintiff was still an established teacher at
the time. What Ms. Van Jaarsveld noted
was the injuries that the
plaintiff sustained
which include spinal
fracture.
T
he complainant also
described to her the difficulties that she experienced. According to
the assessment report, pre- accident, the
plaintiff could have stayed
in her career until the age of retirement at 65 years. The report
further found that the plaintiff
had more prospects of being promoted
at the ages between 42 and 45 years. However post- accident, this
changed. Ms. Van Jaarsveld’s
finding was that the plaintiff
now, as a result of the injuries she sustained, will not be able to
perform her duties optimally
as a teacher until the age of retirement
which is 65 years. Further according to Ms. Van Jaarsveld, if the
plaintiff does sedentary
work, she can be able to perform her duties
and continue working until the age of 55 years, but, if not, she will
only be able
to do her work up to the age of 45 years. She based this
on Ms. Grobler and the orthopaedic surgeon’s findings that the
plaintiff,
due to her injuries, is unable to perform her duties as
before the accident and the recommendation that she should be
accommodated
to do sedentary work.
Hanna
Nikelo
Ms.
Nikelo is the plaintiff’s ex- colleague and they attended
school together. They worked together from 2007 to 2014
when
she, Ms Nikelo left in February. She testified that before the
accident and the injuries, the plaintiff was a hardworking,
dedicated
teacher who would go an extra mile and give her learners extra
classes. That after the accident the plaintiff returned
to school in
the beginning of 2014. According to Ms. Nikelo after the
accident a lot changed about the plaintiff. She had
experienced some
problems in walking and she would, as a result be late for classes.
She testified that the plaintiff could not
do what she was required
to do because of her physical impairment. She testified that
according to her, the plaintiff has not yet
fully recovered as she
still struggled with emotions and lacked confidence. She further
testified that 80% of the time teachers
are required to do their work
whilst standing and walking and that this would naturally pose
challenges to the plaintiff.
[6]
Experts reports were also submitted in a bundle as exhibit “A”.
Amongst these there were reports of Ms. Van Jaarsveld
who also
testified and that of Dr. Oelofse, an orthopaedic surgeon who
assessed the plaintiff on the 25 October 2016 which was
more than
three years after the accident. The doctor received the information
from the plaintiff herself. In his report, Dr. Oelofse
stated that
the plaintiff struggled with standing or sitting over long period of
time, writing with her right hand, working hunched
over for a long
period of time and reaching for items with her right hand. The
doctor also observed that the damage on the
plaintiff was permanent
and could deteriorate over time.
Issues
[7]
There are, in my opinion 2 issues for determination. These are as
follows;
1.
Whether
having regard to the fact that the plaintiff is still employed by the
same employer, with her salary unaffected and with
the employer
allowing her to do less strenuous duties it can be accepted that the
plaintiff therefore will not suffer any loss
of earning capacity;
2.
If any
calculation in respect of loss of earning must take into account the
defendant’s submission that the plaintiff was
being paid the
same salary as before the accident.
The
Legal Principles
[8]
The plaintiff bears the onus on the balance of probabilities to prove
her case that she is entitled to an award for loss of
future earning
capacity. See
Kunene
v Road Accident Fund
2011
ZAGPJHC 194 (8 DECEMBER 2011).
[9]
It is accepted in many decisions that it is not an easy task for the
court to value damages in terms of money. See
Sandler
v Wholesale Coal Suppliers Ltd
1941
(AD) 194; Lee Z v Road Accident Fund, Case no 24915/2008 North
Gauteng, Pretoria.
[10]
In
Bane and others v D’Ambrossi
2010 (2) SA 539
the
court quoted with approval the following dictum by Nicholas JA
in
Southern Insurance Association Ltd v Bailey NO
1984 (1) SA
98
at 113 to 114;
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss. It has
open to it 2 approaches. One is for the Judge to make
a round
estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter of guesswork, a blind plunge
into the
unknown. The other is to try to make an assessment, by way of
mathematical calculation, on the basis of assumptions resting
on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and these may vary from
the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a greater or lesser extent.
But the Court
cannot for this reason adopt a non possumus attitude and make no
award.”
[11]
In
Kunene v Road Accident Fund
supra
at paragraph 20
Moshidi J referred to the case of
Bridgman No v Road Accident
Fund, Cape of Good Hope Provincial Division,
case no. 5622/98
where the following was said regarding loss of earning capacity;
“
It
is apparent from the South African case law that, in the majority of
cases the correct approach in assessing damages for loss
of earning
capacity involves a comparison between the present value of the
future income and which the plaintiff could have earned
in an
uninjured state, on the one hand with the present value of the
plaintiff’s estimated future income, if any, in his
or her
injured state on the other hand”.
[12]
The court should therefore determine the case justly and equitably
taking into account all circumstances.
EVALUATION
OF THE EVIDENCE
[13]
It is common cause that before the accident, the plaintiff was a 30
year old hard working Secondary School teacher who was
physically
active and took joy in her work. It is on record that the
plaintiff took part in sport and was a soccer coach.
It is not in
dispute that all these changed after the accident. She is not
physically active anymore, she now tires easily and
she experiences
pains and depends on painkillers. It is also common cause that after
the accident the plaintiff moved to a Primary
School where she is now
teaching the lower grades. This was done so as to make her to be
closer to her home and in order to ease
her work load. She is
therefore accommodated by her employer in this position because of
her struggles and suffering due to pains.
It is common cause that
prior to the accident the plaintiff was never injured in any way and
she did not suffer from any back pain
and was generally in good
health.
[14]
The undisputed evidence is that the plaintiff pre-accident had the
potential to get a promotion in her field of work. She could
be
promoted to the position of the Head of the Department and even
possibly eventually the position of a Principal. She also had
the
potential to continue working until she reached the pension age of 65
years.
[15]
Post- accident this is definitely not guaranteed and the odds are
against her. Based on the medical reports, in my opinion
the
plaintiff is limited to the post that she currently occupies. This of
course still depends on the sympathy and understanding
of her
employer being the Department of Education, her supervisors like the
Principal and others like her colleagues, should they
continue to
accommodate her in her current situation.
[16]
In cross examination to Ms. Van Jaarsveld, Counsel on behalf of the
defendant contended that the plaintiff returned to her
work and was
accommodated by the department. It was therefore argued that there is
nothing to suggest that the department will
not continue to
accommodate the plaintiff in the future. Ms. Van Jaarsveld conceded
that, but correctly added that there is also
no guarantee that the
department will continue to accommodate the plaintiff. It should be
noted that on this aspect, the plaintiff
testified that she initially
struggled to get transfer to her current school and that it
eventually took her over 2 years to get
the transfer. This was
despite doctors’ recommendations. According to the plaintiff it
got to an extent of her having to
“beg” the department.
Therefore, there is no guarantee, whatsoever, that the department
will continue to cater for
the plaintiff’s special needs.
[17]
It is accepted, as Counsel for the defendant argued, that because the
plaintiff did not disclose her challenges to her current
school she
could not be accommodated. However it cannot be ruled out that with
changing times and different management the plaintiff
may
encounter
challenges or problems in the future.
[18]
If all these are taken into account, there is no way that one can say
there will be a guarantee in future that the Department
and all stake
holders will accommodate her challenges especially if she can
consider taking another job or moving to another school.
[19]
Another argument by Counsel for the defendant was that there is no
indication that the plaintiff’s injuries hindered
her salary
progression. This is quite true, but as it was held in
Fulton
v Road Accident Fund
2012
(3) SA 255
at 262 B-D;
“
The
basic principle of compensation in delictual actions is to place the
plaintiff in the position she would have been in had the
delict not
occurred. When a third party intervenes and makes payment to the
plaintiff out of generosity or benevolence or charity,
the collateral
source rule comes into play. Ultimately this rule states that such
payments are res inter alios acta and must be
disregarded when
quantifying the damages. One of the reasons behind this is the
reluctance on the part of the law to allow the
‘wrongdoer’
to benefit from the acts of kindness of another unrelated party.”
[20]
This dictum is apposite here. The defendant can therefore not rely on
the argument that, the Department of Education, which
is the third
party in this case, may continue with its generosity or benevolence
towards the plaintiff. What needs to be taken
into account, is Ms.
Van Jaarsveld’s finding that, based on the orthopaedic
surgeon’s findings, the plaintiff, if allowed
to do sedentary
or light duty work will be able to continue working until the age of
55 years, but, if not, it will be 10 years
earlier at the age of 45
years. This means that whatever that happens the plaintiff will not
be able to work until the normal retirement
age of 65 years.
[21]
It was further argued for the defendant that the plaintiff’s
wellbeing might be improved if she undergoes further treatments
like
physio therapy which the defendant has undertaken to pay for. This is
indeed correct, however, the injuries that the plaintiff
has
sustained in the accident cannot be overemphasized. There is
therefore no guarantee that the therapies that the plaintiff will
undergo will reverse her condition to pre-accident. The
defendant in paragraph 10 of the heads of argument alluded to this
where the following was said,
“
the
proposed medical and psychological intervention will not provide a
miracle cure for all plaintiff’s complaints, but logic
dictates
that should it be successful, and there is no reason to believe it
won’t be, it will provide substantial relief.”
This
statement, without a doubt reveals that the defendant admitted that
there is no guarantee that the plaintiff can heal completely
or
recover fully.
[22]
The doctor’s opinion is also that the injuries that the
plaintiff sustained in the accident had a profound impact on
her
productivity and working abilities. According to the doctor’s
report, even with successful treatment the plaintiff will
continue to
have a deficit on her spine and right forearm. These according to Dr.
Oelofse will degenerate with time and will impact
on her ability to
do physical activities. As stated above being an educator involves
lot of physical activities.
[23]
Another argument by the defendant was that as plaintiff indicated
that she is willing to grab any opportunity, should it arise,
with
both hands, then it means that the plaintiff will not suffer loss of
earning capacity. This in my opinion only proves the
plaintiff’s
resilience and eagerness to do better and to pull up her socks
despite challenges, but her resilience does not
diminish the high
possibility of degeneration and her need to go on early retirement.
[24]
It was further stated in different reports that the injuries that the
plaintiff sustained placed her in an unfair competition
in the open
labour market. This cannot be overlooked when considering the
plaintiff’s loss of future earning capacity. It
is on record
that, because of the effects of the accident the plaintiff lacked
confidence and she doubted her abilities and capabilities
hence she
did not even apply for the available post despite being encouraged to
do so. Evidently, had it not been for the accident
she could have had
the confidence and trusted herself to be up to the task and applied
for the post.
[25]
It is trite that the courts in matters like these, have to exercise
their discretions judicially taking into account all the
circumstances surrounding the case. There are 2 actuarial reports
prepared by Munro Actuaries which were submitted on behalf of
the
plaintiff.
Counsel
for the defendant’s argument is that I should reject the second
report (Exhibit “B”). According
to the second
actuarial report, there are 2 scenarios regarding the plaintiff
taking an early retirement. The first scenario is
of the plaintiff
taking an early retirement at the age of 55 years and the second one
is for her retiring even earlier at the age
of 45 years. The
calculations in respect of the first scenario were lower at the
amount of R 2 460 705 – 00, whilst the calculations
on the
second scenario are higher at the amount of R3 926 280 – 00.
The plaintiff’s Counsel has opted for the second
scenario in
which calculations are made for the retirement at the age of 45
years.
[26]
I am also mindful of the contentions by Counsel for the defendant and
I have assessed them as against the version of the plaintiff
regarding the possible age of retirement of the plaintiff.
[27]
The plaintiff is currently 35 years old and her condition improved
from time to time after the accident. Initially she had
difficulty
walking, she then walked using two crutches, thereafter she used one
crutch, she then walked with a limp and eventually
she walked almost
normally. At that stage, the plaintiff was still 30 years old
and age was without a doubt on her side for
her to recover. There is
therefore no guarantee that this condition will continue until age of
65. The opinion expressed by Dr.
Oelofse is that with time the
injured spine and right forearm will degenerate and impact on the
plaintiff’s ability to do
physical work. There was no other
medical report to dispute this. I therefore find no reason to reject
this finding.
[28]
I also take into account the joint minutes report by Dr. Kruger and
Dr. Ngoandu. The two doctors are of the opinion that the
plaintiff,
because of the head injuries, has an increased risk of developing
epilepsy in future. They further agree that
the plaintiff has
since the accident struggled with loss of memory and lack of
concentration. I further take into account the evidence
adduced on
behalf of the plaintiff and the opinions expressed in the various
reports in exhibit “A”, which dealt with
high possibility
of the plaintiff going on early retirement. All these factors will
obviously impact on the plaintiff’s future
earning capacity.
[29]
In her evidence, the plaintiff referred to one Doctor Louw who
according to the plaintiff examined her and made some
recommendations.
Counsel for the defendant’s submission
in this regard is that this version of the plaintiff should be
rejected as there was
no report submitted of Dr. Louw nor was the
doctor called to testify. I agree.
[30]
The 2 above- mentioned actuarial reports are based on the report by
the industrial psychologist, Ms Van Jaarsveld. In compiling
the
actuarial report it was taken into account the future uninjured
income as well as the future injured income of the plaintiff.
See
Bridgman No v Road Accident Fund
supra.
Counsel for the defendant’s submission in this regard was that
I should disregard the second actuarial report by Munroe as
it is
speculative
.
I however disagree. The second report was made by the very experts
that compiled the first one. In my opinion, if anything, the
most
recent report is the one that is most acceptable under the
circumstances.
[31]
The real possibility therefore in my opinion which is apparent from
the evidence and experts’ reports is that the plaintiff
will
suffer loss of future earnings. I am therefore not satisfied with the
defendant’s offer of an amount of R612 900, 00.
This in my
opinion will not be adequate under the circumstances of this case.
[32]
Having said that, I do not find any reason why the plaintiff cannot
continue in her current employment and current position
until the age
of 55. It is on record that after she disclosed her challenges
at her work place she was accommodated to do
sedentary work.
According to medical opinion if she is allowed to do sedentary work
she may be able to continue working until the
age of 55 years. Taking
the above-mentioned into account, I am therefore of the view that
there are high possibilities that the
plaintiff will not be able to
continue to perform her duties optimally until the retirement age of
65. I cannot, however,
say that I am satisfied as it was argued
for the plaintiff, that she will not continue in her employment until
the age of 55 and
that her possible retirement age is 45 years.
[33]
As indicated above, most issues were settled. The only issue left for
the determination is the plaintiff’s loss of future
earning
capacity. The parties suggested different amounts as the plaintiff’s
loss of future earnings. From this, I
can safely say that both
parties agreed that the plaintiff will suffer loss of earning
capacity. What is in dispute is how much
she is entitled to.
[34]
Based on the evidence and the facts presented by the plaintiff and
the experts, as well as the experts’ reports I consider
the
most probable retirement age for the plaintiff to be 55 years.
Therefore scenario 1 of Munro’s second report (Exhibit
“B”)
appears to be the most applicable in the circumstances of this case.
I have, therefore, taken
their
calculation of the projected future loss of income capacity as the
point of departure. I have also taken into serious consideration
the
calculations and total amounts proposed by the defendant.
[35]
Based on the above and in my discretion, I concluded that an amount
of R 2 000 000, (Two million Rand) would be an appropriate
and fair
amount to award the plaintiff for future loss of earnings.
[36]
Accordingly the following order is made;
1.
The
defendant shall pay the Plaintiff the amount of R2000 000- 00 (Two
Million Rand) in respect of future loss of income.
2.
The
defendant shall provide the Plaintiff, as agreed, with an undertaking
in terms of
section 17
(4) (a) of the
Road Accident Fund Act No. 56
of 1996
, to compensate her 100% for the costs of her future
accommodation in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to her arising out
of the injuries sustained in a motor vehicle on 17 January 2013,
after
such costs have been incurred and upon proof thereof;
3.
The
Defendant shall pay to the plaintiff the agreed amount of R 650 000,
00 (Six Hundred and Fifty Thousand Rand) in respect of
general
damages.
4.
The capital
sums shall be paid within 14 days of date of this order , after which
interest shall accrue on the capital sum at a
rate of 10, 0% per
annum;
5.
Defendant
shall pay plaintiff’s costs on the High Court scale as between
party and party as taxed or agreed, including, but
not limited to the
following
(i)
All costs
attendant upon the obtaining of payment of the capital sum;
(ii)
The
qualifying fees and all reasonable and necessary fees and
disbursements of the expert witnesses referred to herein below;
(a)
Dr. FL
Oelofse [Orthopaedic Surgeon];
(b)
Ms.
Marli Grobler [Occupational Therapist]
(c)
Me. S van
Jaarsveld [Industrial Psychologist]
(d)
Me. L.
Grootboom [Clinical Psychologst]
(e)
Dr. JH
Kruger [Neurosurgeon]
(f)
Dr. D
Hoffman [Plastic Surgeon]
(g)
Dr. K roux
[Psychiatrist]
(h)
Munro
Forensic [Actuaries]
It is recorded that it
shall be in the Taxing Master’s discretion to determine whether
the experts are entitled to be compensated
for reasonable and
necessary expenses
6.
Payment of
the taxed or agreed costs shall be effected within 14 days of date of
agreement or taxation, after which the agreed or
taxed costs shall
accrue interest at the rate of 10,0% per annum
7.
In the
event of the costs not being agreed the Plaintiff shall serve the
notice of taxation on defendant’s attorneys of record.
________________
B.
LEFENYA, AJ
On
behalf of the plaintiff: Adv. Steenkamp
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of the defendant: Adv. De La Rey
Instructed
by: Maduba Attorneys
Bloemfontein