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[2018] ZAFSHC 150
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Hebler obo Steyn v Road Accident Fund (2536/2014) [2018] ZAFSHC 150 (4 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2536/2014
In
the matter between:
BARBARA-AAN
HEBLER
o.b.o
Plaintiff
DANELLE
STEYN
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT BY:
MHLAMBI
J,
HEARD ON:
05, 06, 08 June 2018, 03 August 2018
DELIVERED
ON:
04 OCTOBER 2018
MHLAMBI,
J
[1]
The plaintiff sued the defendant for general and special damages
arising from a motor collision which took place on 21 April
2012 in
Dan Pienaar, Bloemfontein. A settlement agreement was entered into
and made a court order on 24 November 2017 in terms
of which the
merits, the aspect of general damages, medical and hospital costs
were finalised. The only outstanding issue to be
determined is that
of the past and future loss of earnings or/ earning capacity.
[2]
At the inception of the trial, the Rule 38 affidavits of the
following persons were handed in by agreement: Benita Crouse, the
Occupational Therapist; Dr EJ Jacobs, Industrial Psychologist; Dr
Pieter Olivier, Orthopaedic Surgeon; Charl du Plessis, Actuary
at
Munro Consulting; Dr Shafik A Parker, Neurosurgeon; Mignon Coetzee,
Clinical Psychologist.
[3]
The issue to be adjudicated upon revolves around the amount of
compensation to be awarded as reflected in paragraph 2 of the
actuarial report by Munro Forensic Actuaries dated 21 February 2018.
Paragraph 2.1 of the report states the following:
“
2.
EXECUTIVE SUMMARY
Basis
of the Claim
The
information provided indicates that the claimant:
·
is not expected to reach her pre-accident
career potential
·
is expected to retire early at age 30
2.2
Capital Value of Loss of Income (no
contingencies, RAF cap has no impact)
Scenario
1
Past
R 26 000.00
Future
R 1 185 300.00
Total
R
1 211 300.00
Scenario
2
Past
R -106 300.00
Future
R 6 016
400.00
Total
R 5 910 100.00”
The
information underlying the loss of income calculation was based on
the reports of the industrial psychologist, Dr E.J. Jacobs
whose
figures were updated to reflect current figures.
[4]
Scenario 1
indicates
the situation where the plaintiff would probably have been able to do
unskilled work in the open labour market as a general
worker and the
plaintiff’s loss was calculated to be R 1 211 300.00; if no
past loss of income is taken into account and
no contingencies having
been applied.
Scenario 2
is
where the plaintiff would have been able to become a staff nurse and
the plaintiff’s loss was calculated to be R 6 016
400.00; if no
past loss of income is taken into account and no contingencies having
been applied.
[5]
Dr Oliver opines in his report that the plaintiff will be forced to
retire at the age of 30. From then onwards she will be able
to
perform a type of job that mostly entails semi-sedentary duties only.
It was not foreseen that surgical intervention, such as
a total knee
replacement, would have a significant positive impact on her current
level of disability. Dr Jacobs shares this opinion
and in his view
there are no guarantees that the plaintiff would be able to keep a
job to the age of 30. Both counsel are
ad idem
that the plaintiff will retire at the age of
30 as stated by the experts. However, the bone of contention is which
calculation the
court should follow in determining the plaintiff’s
loss of earnings in the light of the scenarios contained in the
actuarial
report.
[6]
The plaintiff’s case is that it should be assumed that she
would have achieved at least a grade 10 level of education
and would
have become a staff nurse. She would retire at age 30 or even earlier
and will not be able to compete in the open labour
market at all. The
defendant contended that the plaintiff lacked the capacity to have
progressed to such a level and would have
entered the labour market
as a general worker. Even if the accident had not occurred and in the
absence of the injuries, the plaintiff
would not have progressed and
obtained the necessary qualifications in order to become a staff
nurse as she lacked the capacity
to do so. The accident was not the
cause for the inability to obtain the said qualification. She would
never have progressed beyond
the position of a general worker in the
open labour market. This is confirmed by the evidence of the
defendant’s witness,
Ms Ntuli, the educational psychologist.
The defendant submitted that the court should determine the
plaintiff’s loss of income
by using the calculations in respect
of scenario 1, with the application of the contingencies.
[7]
In conclusion, the defendant submitted the normal contingencies of 5%
and 15% ought to be applied should the court follow the
calculations
suggested in scenario 1. Should the court consider following the
calculation in scenario 2, higher contingencies should
be applied? It
was suggested that the appropriate determination by this court would
be an applicable contingency of 25% of the
pre-morbid loss of income
and between 40% and 50% on the post-morbid loss of income and that
the said determination would be reasonable
and just in the
circumstances.
[8]
I was referred by plaintiff’s counsel to the case of
Burger
v Union British Insurance Company
[1]
and the following
quotation:
“
I
do not think, however, where the available evidence established a
likelihood of some fact, situation or event as a consequence
of the
collision which is incapable of quantification within narrow limits,
that I am obliged, because the onus is on the plaintiff,
to act on
the possibility least favourable to her…. What the Court will
not do in such a case is to select, from the range
of possibilities
presented by the evidence, the possibility which is least favourable
to the plaintiff because he bears the onus,
and has not proved that a
more favourable possibility ought to be preferred.”
The court should not select, from the range of
possibilities presented by the evidence, the possibility which is
favourable to the
plaintiff, but rather on the evidence before the
court. I was urged to assume that the plaintiff would have achieved
at least grade
10 of education and assume that she would have become
a staff nurse and apply a contingency deduction of 35%.
[9]
In
AA
Mutual Insurance Associated Ltd v Maqula
[2]
the court applied a higher contingency of 50% on the past loss of
earning and future loss of earning capacity. Should such an
application be adopted in the present case, it would entail that the
plaintiff would be entitled to the payment in the amount of
R2 955
050.00. The plaintiff’s counsel submitted that the application
of a contingency of 50% would be too conservative in
the present
matter, more especially viewed from the uncontested evidence of the
plaintiff as against the evidence of the defendant
and that the
contingency deduction of 35% would be more appropriate. Such an
approach would entail that an amount of R 3 841 565.00
would be
payable to the plaintiff as compensation for her loss of earning
capacity.
[11]
The uncontested evidence on record is that the plaintiff was busy
with night school in Grade 11 at the time of the accident
and that
her scholastic performance to the date of the accident was
restricted. Her concentration was affected by her pregnancy
and
affair with her deceased boyfriend whose death resulted in her
failure to cope with her studies and led to her failing Grade
8 in
2011. She was 15 years old when she sustained the severe injuries.
Her post-accident cognitive function remained the same.
She started
attending the night school in preparation for becoming a staff nurse
at the instance of her mother who was a nurse.
Her mother was of the
view that the plaintiff was diligent at this school, much happier and
would have obtained positive results
had it not been for the
accident. Dr Jacobs confirmed that the plaintiff would have attained
either Grade 10 or 11, but less likely
Grade 12. Grade 10 was a
requirement for admission to the program of a staff nurse. The
plaintiff showed an intention to better
herself and her education and
stood a good chance of achieving her goal. A factor to be considered
was the level of education of
both the parents and the siblings who
all had at least a Grade 10 qualification.
[12]
The educational psychologist, Ms Ntuli, who testified for the
defendant, conceded that it would have been difficult and unlikely
for the plaintiff to have achieved Grade 10 but that it was not
impossible. Ms Kheswa, the industrial psychologist on behalf of
the
defendant, conceded that she never saw or evaluated the plaintiff
herself, but her assistants did and prepared the source documents.
She conceded that she “cut and pasted” the conclusions
she arrived at, which were wrong. It is therefore clear on the
evidence presented, that the defendant failed to neutralise and
refute the plaintiff’s evidence; more especially the evidence
of Dr Jacobs in that the plaintiff would have reached a Grade 10 or
11qualification and could have become a staff nurse. I therefore
find
that the plaintiff would have achieved either a Grade 10 or
11qualification which would have led her to becoming a staff nurse.
[10]
Having considered the above, I am of the view that the application of
50% contingency is appropriate and the award of the amount
of R 2 955
050.00 would be a fair and reasonable compensation for the plaintiff
in respect of her loss of earning capacity.
[11]
In the result, costs should follow the event.
[12]
I therefore make the following order:
Order:
1.
The defendant is ordered to pay to the
plaintiff the amount of R 2 955 050.00 in respect of loss of
earnings;
2.
The defendant is to pay the plaintiff’s
costs of the action.
____________
MHLAMBI,
J
Counsel
for the Applicant: Adv. S Botha
Instructed
by: Rosendorff Reitz Barry
6
Third Street
Bloemfontein
Counsel
for Respondents: Adv. A Sander
Instructed
by: Maduba Attorneys
153
Pres. Reitz Avenue
Office
Park 2, Unit 7
Westdene
Bloemfontein
[1]
[
1975] All
SA 647
(W) at page 649
[2]
[
1978] All
SA 249
(A)