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[2016] ZAFSHC 146
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Motaung v Minister of Safety And Security (1024/2012) [2016] ZAFSHC 146 (8 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 1024/2012
DATE:
8 AUGUST 2016
In
the matter between:
PETRUS
LEBABO
MOTAUNG
................................................................................................
Plaintiff
And
THE
MINISTER OF SAFETY AND
SECURITY
................................................................
Defendant
JUDGMENT
BY: VAN ZYL, J
DELIVERED
ON: 8 AUGUST 2016
[1]
The plaintiff instituted action against the defendant for damages he
suffered as a result of a gunshot wound he sustained on
29 January
2011, which shot was fired by a police officer. He sustained a wound
to his right groin with a fracture of the right
femur. A later
radiological examination on or about 21 May 2014 demonstrated a
healed fracture of the right femur with internal
fixatives in
situation.
[2]
The parties settled the merits of the claim as a result of which the
following court order was issued on 29 October 2013 by
agreement
between the parties:
“
1.
The defendant is liable for 70% of plaintiff’s agreed or proven
damages.
2.
The trial is postponed
sine die
for determination of the quantum.
3.
Defendant is to pay the Plaintiff’s costs.”
[3]
The measure of damages claimed by the plaintiff is set out in
paragraph 8 of the particulars of claim, which reads as follows:
“
As
gevolg van die beserings wat die eiser opgedoen het en die
behandeling wat hy daarvoor ontvang het, het die eiser skade gely
in
die bedrag van R2 976 675-00 wat soos volg bereken word:
8.1
Toekomstige mediese en verwante
behandeling
(soos bereken deur Munro
Aktuarisse
en uiteengesit in hulle
verslag
hierby aangeheg gemerk
Aanhangsel
“A”) R 138 950-00
8.2
Reeds gelede verlies aan verdienste (soos bereken deur Munro
Aktuarisse
en
uiteengesit in hulle verslag hierby
aangeheg
gemerk Aanhangsel “A”) R 273885-00
8.3
Toekomstige verlies aan verdienste
(soos
bereken deur Munro Aktuarisse
en
uiteengesit in hulle verslag hierby
aangeheg
gemerk Aanhangsel “A”) R2 213 840-00
8.4
Algemene skadevergoeding ten aansien
van
permanente pyn en lyding, permanente
ongeskiktheid,
permanente skending,
permanente
ongerief en tydelike skok
R 350 000-00
TOTAAL
R2 976 675-00
”
[4]
On 22 May 2015 the parties settled the quantum of the future medical
expenses and general damages and it was agreed that the
only
remaining issue for determination is the plaintiff’s loss of
earning capacity. The relevant parts of the court
order which
was then issued by agreement between the parties, read as follows:
“
1.
Die verweerder betaal die eiser ‘n bedrag van R98 000-00
ten aansien van toekomstige mediese uitgawes;
2.
….
3.
Die verweerder aanvaar aanspreeklikheid vir betaling in die bedrag
van R175 000-00 ten opsigte van die eiser se eis vir
algemene
skade. Betaling hiervan staan oor tot en met finale afhandeling
en/of beregting van die oorblywende skadeposte en
dra rente teen 9%
per jaar vanaf datum van hierdie bevel tot en met datum van
vereffening daarvan.
4.
Die enigste oorblywende skadeposte van die eiser se eis, synde reeds
gelede en toekomstige verlies aan verdienste, word uitgestel
….
5.
Die verweerder is aanspreeklik vir betaling van die eiser se
getakseerde of ooreengekome verspilde koste (indien enige)
voortspruitend
uit die uitstel.”
[5]
The trial therefore proceeded only on the issue of the plaintiff`s
loss of earning capacity; hence, the quantum of the plaintiff’s
alleged loss of past income and/or future income. It was also
agreed that I am either to award a global amount in respect
of the
plaintiff’s loss of income (past and/or future) or to make a
declaration as to the plaintiff’s pre- and post-injury
career
paths and the respective contingencies to be applied in both the
injured and uninjured scenarios, whereupon the parties
will request
an actuary, mutually acceptable to the parties, to calculate the
plaintiff’s loss of earning capacity (the quantum
of the
plaintiff’s alleged loss of income (past and/or future)) and
once same is received, I will once again be approached
to make such a
determination an order of court. Based on the available evidence, I
have decided to follow the second route.
[6]
At the commencement of the trial the parties also agreed that the
defendant concedes the contents of three expert reports filed
by the
plaintiff and agrees to them being submitted into evidence.
Those are the expert reports of Dr AF Pienaar, an orthopaedic
surgeon
(exhibit A), Me M Smit, an occupational therapist (exhibit “B”)
and Mr P Greeff, a clinical psychologist (exhibit
“C”).
[7]
The plaintiff, the plaintiff’s erstwhile supervising officer,
Captain Ngune, and Me E Auret-Besselaar, an expert witness
who is a
registered psychologist and HR consultant, testified for the
plaintiff. Me Auret-Besselaar’s report was accepted
as
Exhibit “G”.
[8]
The defendant tendered the expert evidence of Mr K Jooste, an
industrial psychologist. Due to an oversight Mr Jooste’s
report was not formally admitted into evidence as an exhibit, but it
does form part of the paginated bundle of expert notices and
reports
and was indeed accepted into evidence as such.
[9]
A joint minute concluded between Me Auret-Besselaar and Mr Jooste,
dated 14 May 2015, concerning the plaintiff’s alleged
loss of
income, was admitted as Exhibit “H”.
[10]
The defendant filed a notice of his intention to further amend his
plea, to which there was no objection and I granted the
amendment
accordingly. In terms of the amendment, the following additional
averments were pleaded:
“
5.2
In the event that the court may find that plaintiff suffered damages,
which is not conceded, defendant pleads that plaintiff
failed to take
any, alternatively sufficient steps to subject himself to medical
treatment, which treatment would have resulted
in him functioning
optimally and noteworthy;
5.3
Defendant pleads that plaintiff generated income from his services as
reservist and from his employment at his father`s business
and that
any loss of income has to be discounted there against;
5.4
Defendant pleads that plaintiff was able to exploit other sources of
income and failed to do so, alternatively failed to take
reasonable
steps and initiative to do so;
5.5
Defendant therefore pleads that plaintiff failed to limit his
damages.”
[11]
After having considered the totality of the evidence, it is in my
view evident that the factual basis upon which this matter
is to be
considered, is not that much in dispute anymore, but rather the
inferences and conclusions to be drawn from it.
In the
circumstances I do not consider it necessary, nor efficacious, to
summarise all the evidence. I will rather concentrate
on the
pertinent issues at hand and deal with those parts of the evidence
directly relevant to the said issues.
BACKGROUND:
[12]
The plaintiff was born and bred in Bethlehem. His date of birth is 30
November 2011. He matriculated in 2008 with university
exemption.
[13]
In 2009 he enrolled at the University of the Free State, QwaQwa
Campus for a BA Communication degree. He actually wanted to
study B.
Education, but his marks were too low to meet certain requirements.
Although he qualified for a NSFAS bursary, his parents
were
struggling financially. At the time the liquor store in Bethlehem
which his father owned and managed, went bankrupt and his
father had
to rent it out. The plaintiff decided to rather seek employment
in order to assist his parents financially.
[14]
At the beginning of 2010 the plaintiff joined the South African
National Defence Force (“SANDF”). He signed
a
service contract on 12 January 2010 (exhibit “F”).
In terms thereof he joined the Military Skills Development
System
(“MSDS”) for a term of 24 months. At the same time
he concluded a further service contract, exhibit
“D”,
in terms of which he undertook to be employed in the Reserve Force of
the SANDF for a period of 5 years after
the initial 2-year period of
full-time training in the MSDS. The reservist position was not on a
full-time basis – in terms
of the contract he was obliged to
render 30 calendar days service per annum. He
started his training at Oudtshoorn.
He started with basic
military training, where after further more specialised training
courses followed. He was transferred
to 21 SAI Battalion, at
Doornkop, Johannesburg during November 2010. There his
immediate superior was Captain Ngune.
At the time of the
incident he was undergoing a driving course, during which he was
taught to drive SANDF specialised heavy vehicles,
such as the
casspir, the samil, etc and which included training in the
maintenance of the vehicles. He obtained his military
learners
driver’s licence, which licence was not valid for driving on a
public road in a civilian capacity. However, as a
result of the
incident and the injury he suffered he was unable to complete the
said course. He was hospitalised and underwent
surgery.
He only returned to work during May 2011. At the time he was on
crutches and incapacitated to the extent that
he was unable to
proceed with his training. He attended roll call in the
mornings, where after he had to return to the barracks
for the day.
The plaintiff again underwent surgery on 18 July 2011 and only
returned to work during approximately August
2011. He was still
on crutches. He was still unable to participate in any further
training. When he joined the
SANDF he was classified as a G1K1
individual, which means that as far as his physical abilities were
concerned, he was healthy
and fit. However, as a result of the
incident his status changed to G3K3, which means that he was
physically incapacitated.
[15]
He received his full remuneration up until the end of his MSDS
contract at the end of 2011. As a result of him joining
the
Reserve Force, he was called up to perform reservist duties at
Kroonstad, Regiment de Wet, as per his contract of employment
on the dates which are reflected in the report of Mr Jooste,
paginated p. 28 of the expert bundle. (Those dates are not
disputed and are accepted as common cause between the parties.)
The plaintiff is unable to remember what remuneration he previously
received for his reservist duties, but testified that during 2015 it
was R440-00 per day. His duties consisted of administrative
office
duties, which included filing and computer work.
[16]
Since he left the full time employment of the SANDF at the end of
2011, he applied for a position at the security services
of
Transnet. Because he was required to undergo a physical test to
qualify for the position, which he could not do as a result
of his
injury, his application was unsuccessful. He also applied for
the position of a train driver/assistant train driver,
but received
no response and did not follow it up. His application to join
correctional services was also not responded to and
he did not follow
that up either. Since the beginning of 2012, the plaintiff has
therefore not been formally employed on
a full time basis (other than
by his father, to which I refer
infra
).
[17]
The plaintiff is still living in Bethlehem. He is staying with
his girlfriend and their child of under two years old.
His
father has in the meantime during 2011 taken back control over his
liquor store. The plaintiff has been assisting him
in the said
store, for which services he receives approximately R1 500-00
per month. The plaintiff is not receiving any form
of social grant.
[18]
The plaintiff has since attempted to obtain his civilian driver’s
licence, but he failed the learner’s licence.
[19]
During 2013 the plaintiff enrolled at the FET College in QwaQwa,
starting the first year of Electrical Engineering. He
however
had to cease his studies in June 2013 due to a lack of funds.
[20]
In his evidence the plaintiff testified that he wanted to join the
SANDF and then whilst employed by them, enrol as a part-time
student. At that time it was his ambition to obtain a B.
Education degree. He explained that according to his knowledge,
the more qualifications one obtains whilst being employed by the
SANDF, the better one’s chances become to be promoted.
He
testified that he would very much have loved to become a permanent
member of the SANDF. He explained that he enjoyed the
type of
work, as well as the environment. He made reference to the team work
and team spirit he enjoyed. The plaintiff explained
that he would
have done all that was necessary to qualify to become a permanent
member of the SANDF. He showed good discipline,
fitness and human
relations. He also referred to the fact that during his
training he twice received, what was called, officer`s
positive
orders, which was a form of recognition one received when performing
extraordinary well. He is convinced that
he would have
succeeded in becoming a permanent member of the SANDF. On a pertinent
question on what he would have done had he
been able to complete his
two years initial training, but not succeed in becoming a permanent
member, he explained that he then
most probably would have been
employed by Transnet, as they employ physically fit soldiers as
security officers.
[21]
According to the plaintiff’s evidence he is currently still
suffering from pain in his right knee and his right thigh.
He
walks with a limp and is unable to run. He uses pain medication,
called Pain Block, which he usually takes three times per day,
although he conceded that there are days when his pain is less.
He is unable to sit for long periods of time. When
he did his
reservist work, the pain he experienced compelled him to get up from
behind his desk at certain intervals in order to
stretch his legs
before he was able to continue with his work.
[22]
Prior to the incident the plaintiff played soccer for the Free State
Stars Development Team. As a result
of his injury, he is no
longer able to participate in sport activities.
[23]
From the evidence of Captain Ngune the relevant process followed by
the SANDF became evident. At the end
of the two year MSDS
training, a member can get elected to proceed to a medium term of
employment (“CSS”) for five
years. However, if a
member does not get so elected, he only has the option of joining the
Reserve Force for five years,
which is not full time employment.
If a member is successful in proceeding to CSS, a further election
process occurs at the
end of those five years and if again elected,
the member continues in the employment of the SANDF for a further
five years.
If a member meets all the requirements at the end
of the second five-year period, he qualifies for a permanent
appointment.
If not, such a member may still receive a renewal
of his contract for a further three years, but not as a permanent
member. During
the said ten-year period before a member can qualify
for a permanent position, such member can however be selected to
undergo courses
in order to be eligible for promotion to higher ranks
during the ten year period.
A
selection board is responsible for the selection of members at the
end of the respective time periods referred to above.
In the
case of the plaintiff, Captain Ngune in his capacity as the
commanding officer of the plaintiff was a member of the said
selection board. In his capacity as such he had the duty to
compile a confidential report regarding the discipline, the
leadership and the conduct of the plaintiff. He explained that
he is therefore involved in motivating the selection of a particular
member, should such member in his view meet the relevant criteria and
requirements. In the instance of the plaintiff, he
did not
qualify to proceed to CSS because of his G3K3 status. A member has to
be G1K1 in order to be considered for selection.
[24]
Captain Ngune also testified that he remembers the plaintiff very
well. He met him during October 2010 in
Oudtshoorn Infantry
School where the plaintiff was one of the soldiers under his
command. At the time he had direct contact
with the soldiers
and he oversaw the training every day. When the plaintiff was
transferred to Doornkop, Captain Ngune was
his direct supervisor. The
reason why he remembers the plaintiff clearly is because he
experienced the plaintiff to be committed
to his work, dedicated,
well-disciplined, respectful and well respected by all. Had it not
been for the plaintiff’s injury,
Captain Ngune would definitely
have recommended that the plaintiff be selected to proceed to CSS.
[25]
Regarding his own career path, Captain Ngune testified that he joined
the SANDF through integration during 1997
and received his training
in Cape Town. He was a Lance Corporal. At the end of 1997
he was transferred to Mpumalanga
and in 2001 he was promoted to full
Corporal. He was responsible for the training and supervising
of troops. He was
then nominated to attend an officer’s
course, after completion of which he was commissioned by the
President. He then
became a two star Lieutenant in 2003.
As Lieutenant he was transferred from Mpumalanga to Infantry School
as officer instructor,
where he was responsible for the rifle
training of troops, both in small and big calibre rifles. He
was then transferred
to the army Gymnasia in Heidelberg as officer
instructor, where he presented officers courses and also non-officers
training.
He was promoted to Captain in 2009 and is currently
stationed at Doornkop Military Base.
[26]
Captain Ngune readily conceded that the number of members to be
selected to proceed to CSS and thereafter, as well
as the rate of
possible promotion, is subject to post availability and budget
constraints.
PRE-INJURY
CAREER PATH:
[27]
Me Auret-Besselaar testified that a military career suited the
plaintiff’s individual profile very well. He loved the
MSDS
training. He enjoyed being a soldier and the surrounding
circumstances, such as the free training, also suited him well. He
was motivated by the presence of his colleagues and peers who made
him realize that he is busy preparing for a future career. He
did not
have any disciplinary problems – he understood and accepted
discipline. He easily adapted to the environment.
At the age of
20 years he found an organisation that offered him a career
opportunity for which he was ready and the possibility
of progression
and promotion gave him hope to establish a permanent career in the
SANDF. The collateral information she obtained
from Captain Ngune,
which is summarised in paragraph 6.6.1 on paginated page 69 of her
report, confirmed that the plaintiff was
a very good soldier. The
summary reflects the following information she received from Captain
Ngune:
·
“
He says that Rifleman Motaung was a
good soldier who obtained excellent results in the theory exam. He
displayed good behaviour
and discipline. He was a fit and active
soldier, able to cope with the strenuous physical demands.
·
He is of the opinion that at the end of the
training by November 2011, Rifleman Motaung would have most probably
have become a permanent
member of the SANDF.”
Me
Auret-Besselaar testified that she is of the opinion that in all
probabilities the plaintiff would have been selected to proceed
to
CSS and would have eventually became a permanent member of the
SANDF. She also testified that considering her own evaluation
of the plaintiff, Captain Ngune’s opinion and impression of the
plaintiff as a potential soldier and having listened to Captain
Ngune’s curriculum vitae in Court, she is convinced that the
plaintiff could have had a similarly successful career path
had it
not been for his injury. Possible restrictions like limited
available posts and budget constraints did not prevent
Captain Ngune
from accelerating in his career and therefore, in her view, the
plaintiff could have been equally successful.
[28]
Me Auret-Besselaar obtained collateral information from Sergeant
Major Fourie of the HR Division at the SANDF Headquarters,
Pretoria,
regarding the promotion system within the SANDF, remuneration
packages, benefits, etc. The said information is summarised
as
follows in paragraph 6.6.2 on paginated pages 69 to 70 of Me
Auret-Besselaar’s report:
·
“
Sergeant Major Fourie stated that
after the completion of the 2-year training contract, depending on
the member’s performance,
he/she can become a permanent member
of the SANDF.
·
Promotion to the following positions and
corresponding salary are as follows (2014 minimum value):
o
After 1 year: Rifle man –
promoted to Lance Corporal, earning a minimum salary of R8 754-00
per month;
o
After 3 years: Lance Corporal –
promoted to Corporal, earning a minimum salary of R10 311-00 per
month;
o
After 4 years: Corporal –
promoted to Sergeant, earning a minimum salary of R12 382-00 per
month.
o
After 7 years: Corporal –
promoted to Staff Sergeant earning a minimum salary of R15 286-00
per month.
·
Sergeant Major Fourie reports that benefits
provided by the SANDF to their permanent members include:
Annual 13
th
cheque, medical aid contributions, pension fund contributions,
uniform allowance, accommodation and meal allowances; paid
annual leave and paid sick leave (21 days within a 3-year cycle) and
“danger pay” when working outside the South African
borders. The latter is difficult to determine as there are
numerous variables applied.
·
The retirement age for a permanent employee
in the SANDF is 60 years.”
[29]
The parties are agreed that the positions in the SANDF and the
corresponding salaries and benefits are as expounded in the
aforesaid
paragraph 6.6.2 of Me Auret-Besselaar’s report. However, the
defendant does not accept the rate of progression
as proffered in the
said paragraph and contends that the reflected time periods between
each level represents the minimum time
that a soldier would take to
reach each level of progression. It does not mean that a member will
automatically or necessarily
be promoted to the next rank after the
expiry of the required time period.
[30]
Based on all the information available to her, Me Auret-Besselaar
subsequently opined as follows in paragraph 7.1 on paginated
pages 70
to 71 of her report:
“
Given
the aforementioned information regarding his personal background
history and profile, if the incident had not happened, I
am of the
opinion that in his uninjured state:
·
2011: Complete his final year of the
2-year training as on record, earning the same basic salary, i.e.
R4186-70 per month
(net) until 31 December 2011.
·
From 1 January 2012: Become a
permanent SANDF member in the position of Rifle man at that stage,
earning a net salary of R4186-70
per month (2011 value) with
inflationary adjustments.
·
From 1 January 2013: After 1 year, he
is promoted to the position of Lance Corporal, earning a minimum
salary of R8 754-00
per month (2014 value) plus benefits*,
remain in this position for three years;
·
Thereafter be promoted to the position of
Corporal, earning a minimum salary of R10 311-00 per month (2014
value) plus benefits*,
remain in this position for four years;
·
Thereafter be promoted to the position of
Sergeant, earning a minimum salary of R12 382-00 per month (2014
value) plus benefits*,
remain in this position for seven years;
·
Thereafter be promoted to the position of
Staff Sergeant, earning a minimum salary of R15 286-00 per month
(2014 value) plus
benefits*.
*Benefits
as provided by the SANDF to their permanent members/employees
include:
o
13
th
Annual Cheque: equal to a 100% of his basic salary;
o
Medical aid contributions;
o
Pension fund contributions;
o
Uniform allowance;
o
Accommodation allowance;
o
Meal allowance;
o
“
Danger pay” when working
outside the South African borders (for calculation purposes an
estimation of at least 30% of his
basic salary), if working for a
full month outside SA).
·
Continue in the position of Staff Sergeant
in the SANDF, earning R15 286-00 per month (2014 value) with
benefits*, as outlined
above.
·
He may progress further in the SANDF.
·
Receive annual inflationary adjustments.
·
Retire at age 60.”
[31]
Mr Kevin Jooste testified and opined in his report that the
plaintiff, but for the accident, would not have been able to secure
permanent employment in the SANDF at the conclusion of his two year
MSDS contract; differently put, he would not have been elected
to
proceed to CSS. During cross-examination by Mr Zietsman,
appearing on behalf of the plaintiff, Mr Jooste attempted to
justify
the aforesaid view by,
inter alia
, referring to the collateral
information he received from Me Naomi Jansen, Human Resources Clerk
for 21 South African Infantry
Battalion in Johannesburg, as
summarised in paragraph 7.2 on paginated page 108 of his report.
In this regard he specifically
referred to the following aspects:
“
Ms
Jansen stated that upon the conclusion of the two years of training,
members may at the discretion of their Commanding Officer,
be
enlisted on a permanent basis in the South African Defence Force.
However, Ms Jansen further stated that many candidates
are not chosen
for permanent employment at the conclusion of their training, as
there are often not positions available, or there
are simply too many
candidates and too few positions available.
Ms
Jansen stated that there was nothing on Mr Motaung’s record to
indicate that he been the top achiever of his Company, has
received
any service awards or that he had performed at an above average level
in his Company.”
In
further cross-examination Mr Jooste conceded that Ms Jansen did not
know the plaintiff personally and that he based his opinion
purely on
the possible shortage of enough available positions.
[32]
Mr Jooste referred in paragraph 7.2 on paginated page 107 of his
report to the collateral information he obtained from Captain
Ngune.
The essence thereof is that Captain Ngune confirmed to Mr Jooste that
the plaintiff held the rank of Rifleman and
at the time of the
incident, he was still actively engaged in the MSDS program, which
programme runs for two consecutive years.
In cross-examination
Mr Jooste testified that during his conversation with Captain Ngune,
Captain Ngune indicated that although
he remembers the plaintiff, he
cannot recall any further information regarding the plaintiff’s
pre-morbid personality, his
general standard of conduct, his capacity
as potential soldier etc. This, however, had not been reflected
in the report,
nor was it put to Captain Ngune during
cross-examination.
[33]
Mr Jooste consequently opined, both in his report and in his evidence
that the plaintiff, upon the completion of his MSDS training,
would
have sought out employment on the open labour market and obtained
on-the-job training in order to progress as a semi-skilled
worker.
[34]
In cross-examination however, when confronted with the gist of
Captain Ngune`s evidence, namely that the plaintiff was a good
soldier, that he was dedicated, that he showed good discipline and
that Captain Ngune would have recommended the plaintiff for
election
to proceed to CSS, Mr Jooste conceded that, but for the injury, the
plaintiff in all probability would have been elected
to proceed to
CSS and would have secured permanent employment in the SANDF.
[35]
Mr Jooste`s crucial concession in cross examination was in my view
correctly made. Considering Captain Ngune`s personal interaction
with
the plaintiff during his MSDS training and his personal involvement
in the election process at the end of the MSDS training,
he is
pre-eminently the person who is in the best position to have provided
factual evidence regarding the plaintiff`s conduct,
attitude and
performance during his training; also whether he (Captain Ngune) as a
member of the selection board in his capacity
as the plaintiff`s
commanding officer who was to prepare a confidential report
pertaining to the plaintiff`s discipline, his leadership
abilities,
his conduct etc, would have recommended the plaintiff (had the
plaintiff`s status still been G1K1) for election
to proceed to CSS in
order to become a permanent member of the SANDF. The defendant did
not present any evidence to the contrary
and there is no basis upon
which I should not accept the evidence of captain Ngune as truthful
and reliable. His evidence therefore
provides a proper factual basis
upon which Me Auret-Besselaar and Mr Jooste drew their final opinions
and conclusions on this issue.
[36]
Mr Cronje, appearing on behalf of the defendant, referred in his oral
argument to the remarks by Me Auret-Besselaar in her
report that the
plaintiff indicated that he was planning to register for further
studies during 2015 to eventually qualify as a
teacher. Mr
Cronje submitted that it therefore cannot be accepted that the
plaintiff would have necessarily remained in the
SANDF, as he
considered furthering his studies also as a probable option.
This submission, in my view, does not hold water.
The
defendant’s own expert, Mr Jooste, indicated on paginated page
112 of his report that the scenario of the plaintiff engaging
in
full-time or part-time studies is viewed as unlikely considering the
plaintiff`s financial constraints which already on two
previous
occasions necessitated him to abandon his studies. Me
Auret-Besselaar holds the same opinion based on the same common
cause
facts. I definitely accept and agree with their opinions. It is
clearly highly improbable that the plaintiff would have followed
this
career-path.
[37]
It is evident from all the evidence that the rate of progression and
the ceiling that the plaintiff probably would have reached
would have
been dependent upon uncertain future events, such as budget
constraints, availability of posts, the future performance
of the
plaintiff, etc. In this regard I however agree with the contention of
Mr Zietsman that the best way to account for such
uncertain future
events, is by way of applying an appropriate contingency factor. I
will again deal with this aspect later in my
judgment.
[38]
I am consequently satisfied that the plaintiff proved that his
probable pre-injury career path would have been as suggested
by Me
Auret-Besselaar in paragraph 7.1 on paginated pages 70 to 71 of her
report
POST-INJURY
CAREER PATH:
[39]
Me Auret-Besselaar, in her report, provided for two career path
scenarios in the injured state, namely, scenario one, that
the
plaintiff could obtain funding and return to his studies, qualifying
as a teacher, and scenario two, that the plaintiff obtain
a driver’s
licence and become a driver, restricted to non-deliveries.
[40]
During her evidence Me Auret-Besselaar dismissed the possibility of
the plaintiff furthering and completing his studies on
the basis that
the plaintiff will not obtain funding to further his education.
Two previous attempts to study, one before
and one after the injury,
failed. Mr Jooste also considered this scenario as unlikely for
the same reasons. I have dealt
with this aspect earlier in my
judgment as well when I considered the pre-injury scenario. The
relevant facts to be considered
remain the same in the post-injury
scenario. I therefore maintain my finding of improbability of this
career-path also for purposes
of the post-injury scenario.
[41]
Me Auret-Besselaar summarised the second scenario as follows on
paginated pages 73 to 74 of her report:
“
Scenario
2: Unable to obtain funding (2 attempts already) obtains a driver`s
licence and becomes a driver (non-deliveries):
·
“
Obtains his driver’s licence
in 2015/6: unpaid.
·
Undergo surgery and rehabilitation:
unpaid
·
From 2017: finds a driving job which
is restricted to non-deliveries (not required to manage deliveries
and heavy loads) earning
between R5 000-00 - R6 500-00 per month
(2014 value);
·
After 3 to 5 years, earns R6 500-00 to
R8 500-00 per month (2014 value);
·
Inflationary adjustments throughout his
career;
·
Retires at age 60.”
[42]
She testified that the plaintiff does have residual earning capacity
but because of his physical impairment his employability
has been
significantly compromised by his injury. He cannot compete
against able bodied persons in the open market.
In Me
Auret-Besselaar`s opinion his earning capacity will therefore be
restricted to the medium band of Dr Robert J Koch’s
Suggested
Earnings Assumptions for Non-Corporate workers as contained in The
Quantum Yearbook of Dr Robert J Koch (2015).
[43]
The post-injury career path as suggested by Mr Jooste is very similar
to that of Me Auret-Besselaar. Both expert witnesses
provided
for:
1.
An unemployment period of between 1 to 3 years;
2.
Employment as a driver in the semi-skilled non-corporate sector by
2016/2017; and
3.
Inflationary adjustments throughout his career; and
4.
Employment until retirement at age 60 to 65.
[44]
The difference between the opinions of the two experts is that Mr
Jooste is of the opinion that the plaintiff would progress
to the
upper band of the suggested earnings for semi-skilled non-corporate
workers by the age of 40 to 45 years. In the opinion
of Me
Auret-Besselaar, it is highly improbable that the plaintiff would
progress to the upper band of earnings for semi-skilled
non-corporate
workers. She explained that it is expected of a driver earning
in the upper semi-skilled band to not only do
driving, but also to
assist with the loading and unloading of vehicles and to manage
deliveries. Although the plaintiff might
have the strength to
help with the loading and unloading of light loads, she is of the
view that he will not be able to endure
and maintain the work for a
full eight hour day.
[45]
Me Auret-Besselaar’s opinion is supported by that of Dr
Pienaar, the orthopaedic surgeon, where he stated as follows
on
paginated page 12 of his report:
“
It
is writer’s opinion that the sequelae of the injuries he
sustained on 29 January 2011 will probably prevent him from doing
the
most strenuous categories of work. He will however be able to
work as a driver or work a similar physical demands.”
The
opinion of Me Smit, the occupational therapist, also provides support
for Me Auret-Besselaar’s view, where she stated
as follows on
paginated page 29 of her report:
“
E
ndurance:
·
After 6 to 7 minutes his right sided limp
became slightly more prominent.
·
After 10 minutes he reported lower back-
and right knee pain; He was noted to rub his back;
·
At the end of the endurance subsection he
reported a stabbing pain in the right thigh and knee and a burning
pain in the back.”
On
paginated page 37 of her report, under the heading “Residual
Work Capacity”, the following was concluded:
“
After
successful right leg surgery and rehabilitation, Mr Motaung should be
able to do work falling in the light and medium parameters
that
should preferably refrain from participating in heavy to very heavy
physical work.
He
should be able to work as a driver…”
[46]
In addition to the aforesaid, and as correctly pointed out by Mr
Zietsman during his oral argument, Mr Jooste himself testified
that
as a driver the plaintiff will be restricted to non-delivery duties,
probably with a light delivery vehicle, which would place
him in the
semi-skilled non-corporate workers sector. He opined that
driving heavier vehicles for which a code 10 or code
14 licence is
required, will place more stress on the plaintiff because of the
higher level of responsibility. That would
even worsen the
depression from which the plaintiff is already suffering which will
have an even further debilitating effect on
the plaintiff`s
functioning.
[47]
Based on the totality of the aforesaid evidence, including that of
the defendant’s own expert witness, it is in my view
abundantly
clear that the plaintiff will be restricted in his career as a driver
to performing only non-delivery or light delivery
work. That
will
mutatis mutandis
restrict his earning capacity to the medium band of earnings for
semi-skilled non-corporate workers.
[48]
I consequently find on a preponderance of probabilities that the
plaintiff’s post-injury career path will be as postulated
in
paragraph 7.2, under the heading “Scenario 2” on
paginated pages 73 and 74 of the report of Me Auret-Besselaar.
However, certain preceding relevant events and information which have
either been reflected earlier in the said paragraph 7.2 but
which was
not repeated under the heading “Scenario 2”, or which are
evident from the evidence, should in my view also
be provided to the
actuary for purposes of his calculation. These are:
1.
The injuries were suffered on 29 January
2011.
2.
The plaintiff`s salary was paid in full
until the end of 2011, when his contract expired.
3.
Since January 2012 the plaintiff has not
been formally employed on a full time basis, but he has received and
been receiving an
income since his injury, which should be provided
for in the calculation. I will deal with the details hereof in the
subsequent
paragraph.
[49]
On his own evidence the plaintiff has been assisting his father in
his liquor store since January 2012 up to date for which
he is paid
approximately R 1500.00 per month. It is now also common cause that
the plaintiff performed reservist duties on the
dates reflected per
the table on paginated page 119 of the report of Mr Jooste. Although
the plaintiff cannot remember the amount
of remuneration he used to
receive before 2015, he testified that for the 2015 period, he was
paid R 440.00 per day. As correctly
pleaded in the defendant`s
further amended plea, the actuarial calculation should therefore make
provision for the aforesaid post-injury
income of the plaintiff.
CONTINGENCIES:
[50]
Contingencies discount the vicissitudes of life and it is a method
used to arrive at fair and reasonable compensation. The
question of
contingencies was dealt with in
[zRPz]
SOUTHERN
INSURANCE ASSOCIATION LTD v BAILEY NO
1984
(1) SA 98
(A) at 113G and 116G – 117A:
“
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.
…
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is ‘tied down by inexorable actuarial
calculations’. He has ‘a large discretion to award what
he considers right’ (
per
HOLMES JA in
Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A)
at
614F). One of the elements in exercising that discretion is the
making of a discount for ‘contingencies’ or the
‘vicissitudes of life’. These include such matters as the
possibility that the plaintiff may in the result have less
than a
‘normal’ expectation of life; and that he may experience
periods of unemployment by reason of incapacity due
to illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount may vary, depending upon
the circumstances of
the case. See
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A)
at
114 - 5. The rate of the discount cannot of course be assessed on any
logical basis:
the
assessment must be largely arbitrary and must depend upon the trial
Judge's impression of the case.
…
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz
v Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at
213:
‘
It
is a mistake to suppose that it necessarily involves a 'scaling
down'. What it involves depends, not on arithmetic, but on
considering
what the future may have held for the particular
individual concerned... (The) generalisation that there must be a
'scaling down'
for contingencies seems mistaken. All 'contingencies'
are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff
might have had prospects or chances of advancement and
increasingly remunerative employment. Why count the possible buffets
and
ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have
balanced or even outweighed the risk of bad.’”
[51]
The usual contingencies applicable to past and future loss of income
in the uninjured state are
5% and
15% respectively. These constitute the so-called normal
contingencies. These contingencies are over and above the usual
provisions which will automatically be incorporated in an actuarial
calculation, such as provision for interest, inflation etc.
[52]
Mr Cronje submitted that the contingencies in the uninjured scenario
should, on the facts of this case, be set at higher percentages.
He based his submission on,
inter alia
, the following factors:
1.
He pointed out that there was no guarantee that the plaintiff would
have been accepted as a permanent member of the SANDF.
2.
The plaintiff had aspirations to further his studies and he might
very well have followed those aspirations and not remained
in the
employment of the SANDF.
[53]
I agree that there indeed was no guarantee that the plaintiff would
have been appointed as a permanent member of the SANDF,
but, as was
stated in the
BAILEY
-
case,
supra
,
“a
ny enquiry
into damages for loss of earning capacity is of its nature
speculative” – there are never any guarantees.
That is
why the issues are decided upon on probabilities. Provision cannot be
made for each and every possible eventuality.
I
have also dealt with the evidence which compelled me to find that it
is improbable that the plaintiff would have furthered his
studies –
which includes the evidence of the defendant’s expert witness
himself. There is consequently, in my
view, no probable
evidence which suggests that the plaintiff would not have remained a
member of the SANDF until retirement age.
He had no medical
condition in the uninjured state that would have contributed to an
early retirement. There is also no indication
of a poor occupational
history or poor work ethic; in fact, the evidence of Captain Ngune
suggests the contrary.
[54]
The only possible negative or adverse contingency to consider is the
possibility that the plaintiff might not have progressed
at the
intervals suggested by Me Auret-Besselaar. However, this aspect
should be considered in conjunction with the fact
that she restricted
the level of his probable promotion to that of a Staff Sergeant.
When considering Captain Ngune’s
evidence as to his positive
experience of the plaintiff as a soldier, read with Me
Auret-Besselaar`s evidence of her opinion and
impression of the
plaintiff`s erstwhile (pre-injury) enthusiasm of establishing a
career in the SANDF with the concomitant possibility
of progression
and promotion, and her opinion that the plaintiff at the time had the
attributes and ability to have been similarly
successful in his
career as Captain Ngune, even read with the plaintiff`s own evidence
which speaks of his pride of his performance
as a soldier, the
limitation to the position of a Staff Sergeant in the instance of the
plaintiff, might very well be a conservative
projection. In my view
the potential negative and positive bearing which these two
respective eventualities might have had on the
calculation of the
plaintiff`s loss of earning capacity, is therefore mutually cancelled
out.
[55]
In the premises I consider the usual respective contingency
deductions of 5% and 15% in the uninjured scenario, to be fair
and
reasonable.
[56]
With regards to the injured scenario, Mr Zietsman submitted that
there are cogent reasons why a higher contingency deduction
will be
fair and reasonable. I have to agree with his submission. Me
Auret-Besselaar stated the following relevant factors
in this regard
on paginated page 75 of her report:
“
High
post-accident contingencies on future earnings must be applied, given
the diminished job options available to him and that
he will need to
be accommodated in future job rolls – for time off work which
as a driver is likely to be unpaid, and not
being fully accommodated
by an employer given his restricted capacity and chronic pain
symptoms.”
I
have already mentioned that in her evidence she also referred to the
fact that he cannot compete with able bodied persons in an
open
labour market. At the same time the plaintiff will be entering
an oversaturated job seekers market. As evident from
the report of Mr
Greeff, a psychologist, the plaintiff also suffers from a chronic
major depressive disorder which hampers him
functionally and
occupationally.
[57]
When considering all the aforesaid factors, I consider a contingency
deduction
of 20% as fair and reasonable.
MITIGATION
OF DAMAGES:
[58]
Mr Cronje submitted that the plaintiff failed to comply with the duty
to mitigate his damages. He referred to a number of judgments
in this
regard,
inter alia
,
to
[zRPz]
MACS
MARITIME CARRIER AG v KEELEY FORWARDING & STEVEDORING (PTY) LTD
1995 (3) SA 377
(D), in which judgment the general
principles were stated as follows at 381F – 382E:
“
The
duty to mitigate entails that the party who has suffered damages as a
consequence of a breach of contract or in delict is under
duty to
take reasonable steps to ensure that his original loss is contained.
Where the loss is exacerbated by a failure on the
part of a claimant
to act reasonably, his claim will be proportionately reduced. Compare
Da
Silva and Another v Coutinho
1971
(3) SA 123
(A)
at
145C-E;
Mayne
and McGregor on Damages
12th ed para 62; Van der Merwe en Olivier
Die
Onregmatige Daad in die Suid-Afrikaanse Reg
6th ed at 187. In claiming his damages the claimant need neither
allege nor demonstrate that he had taken reasonable steps to contain
his loss as the
onus
of proving that he had not acted reasonably in the circumstances
rests upon the defendant who alleges that he has not. In
Hazis
v Transvaal and Delagoa Bay Investment Co Ltd
1939 AD 372
at 388-9, Stratford CJ dealt with the nature of the duty
and the
onus
of proof as follows:
'This
rule about mitigating damages relates not to what the claimant in
fact did, but to what he should have done. It is in essence
a claim
based on negligence - neglect to do what a reasonable man would do if
placed in the position of the person claiming damages.
The defendant
in such claim says "admitting that in fact you suffered those
damages, you have only yourself to blame for having
suffered so much,
or at all, because you did not take reasonable steps to protect
yourself and, therefore, me". Both on principle
and on precedent
the burden of proving that the claimant for damages did not take
reasonable steps to mitigate the damage which
he actually suffered is
upon the one who
A
asserts
that those reasonable steps were not taken. (See
James
Finlay & Co Ltd v Kwik Hoo Tong Handel Maatskappy
[1928] 2 KB 604
at 614 and
Roper
v Johnsson
1873 LR 8 CP 167
at 181.)'”
[59]
Mr Cronje submitted that the plaintiff failed to take reasonable
steps to mitigate his damages. He emphasized that the plaintiff
has
up to date not made any attempt to seek medical treatment for the
physical impairments and the major depressive disorder he
has been
suffering from since the incident. Mr Cronje contended that because
the said conditions have had a debilitating effect
upon,
inter
alia
, his capacity to function
occupationally, the plaintiff had a duty to have sought medical
treatment at an earlier stage already.
That would have increased his
chances of having obtained gainful employment by now which would have
decreased the period of his
unemployment. Mr Cronje also submitted
that the plaintiff has in any event failed to take any proper steps
in an attempt to secure
proper employment since the beginning of
2012.
[60]
The aforesaid contentions should be considered against the background
of the plaintiff’s financial constraints and the
lack of any
proper evidence that he could have obtained such treatment free of
charge or at a nominal rate. His financial constraints
are common
cause between the parties. The high water mark of the evidence
regarding the question on the possible availability
of free or
nominal charged treatment, was the plaintiff`s confirmation that
there is a state hospital in Bethlehem. There is no
evidence on the
actual availability of the treatment needed by the plaintiff. There
is also no evidence as to the period of treatment
that would have
been required in order to have produced positive, effective results
to the extent that the plaintiff would have
been able to be
emotionally fully functional again. Because of the debilitating
effect of his severe depression, it in any event
could not in the
circumstances where he suffers from depression as a direct result of
the incident, have reasonably been expected
of him to secure gainful
employment whilst in such a bad state of depression. Furthermore,
even though his physical condition may
improve, I do not understand
the opinions of the experts to be that the plaintiff will ever be
physically fully functional again,
even with surgery and other
secondary medical treatment. Therefore, even if it is to be accepted
for argument`s sake that he could
have taken reasonable steps which
would have enabled him to return to the open labour market at an
earlier stage, he would, because
of his physical impairment, still
have been faced with the problem of restricted job options and a
general oversaturated
job seekers market.
[61]
In addition to the aforesaid, the plaintiff at least has been
receiving a form of income from his reservist duties and his
assistance at his father`s liquor shop.
[62]
Therefore, in the circumstances where the defendant bears the onus of
proving that the plaintiff had not acted reasonably,
the defendant
has in my view not discharged the said onus.
COSTS:
[63]
There is no reason why the usual principle that costs follow the
result, should not be applied in this matter. In addition
Mr Zietsman
requested that such costs should include the applicable costs of the
plaintiff’s expert witnesses pertaining
to the quantum of the
trial and that the plaintiff and Captain Ngune be declared necessary
witnesses. These are reasonable requests
in the circumstances and are
in accordance with the practice in matters like these.
[64]
The following order is consequently made:
1.
It is declared that the plaintiff’s
loss of earning capacity and hence his loss of past and future income
must be calculated
actuarially, by an actuary mutually acceptable to
the parties, on the following basis:
1.1
But for the plaintiff’s injuries, his pre-injury career path
would have been as outlined in paragraph 7.1 on paginated
pages 70
and 71 of the report of Me Auret-Besselaar;
1.2
In the uninjured scenario a contingency deduction of 5% in respect of
past loss of income and 15% in respect of future loss
of income are
to be applied;
1.3
Having regard to his injuries, the plaintiff’s post-injury
career path was and will be as outlined in paragraph 7.2 under
the
heading “Scenario 2” on paginated pages 73 and 74 of the
report of Me Auret-Besselaar, read with the following
additional
relevant events and information:
1.3.1
The injuries were suffered on 29 January
2011.
1.3.2
The plaintiff`s salary was paid in full
until the end of 2011, when his contract expired.
1.3.3
Since January 2012 the plaintiff has not
been formally employed on a full time basis, subject to the
determination in paragraph
1.5,
infra;
1.4
In the injured scenario a contingency deduction of 5% in respect of
past loss of income and 20% in respect of future loss of
income are
to be applied;
1.5
The actuarial calculation must provide for post-injury income of
R1 500-00 per month (before taxation) calculated from
January
2012 to December 2016 and further income for the days as per the
table on paginated page 119 of the report of Mr Jooste,
calculated at
R440-00 per day (before taxation);
1.6
The actuarial calculation must provide for the normal actuarial
assumptions used in determining the capital value of future
incomes.
2
Upon receipt of the actuarial calculation
in terms of paragraph 1,
supra
,
the parties are granted leave to approach this Court for a final
order in respect of the plaintiff’s total loss of income
calculated at 70% (the merits apportionment) of the said actuarial
calculation, together with such interest (if any) as may be
applicable. Such an order will be considered to be an extension of
this order.
3
The defendant is ordered to pay the costs
of obtaining by the plaintiff of the reports of the experts and the
reasonable preparation/qualifying
and reservation fees (if any), as
well as appearance fees (if any) of the following experts:
3.1
Dr AF Pienaar;
3.2
Me M Smit;
3.3
Mr P Greeff;
3.4
Me E Auret-Besselaar;
3.5
Munro Actuaries;
3.6
The actuary to be employed by the parties in terms of paragraph 1,
supra
.
4
The Plaintiff and Captain Ngune are
declared necessary witnesses.
5
The defendant is ordered to pay the costs
of the quantum trial.
C.
VAN ZYL, J
On
behalf of the Plaintiff: Adv. P.J.J. Zietsman
On
instructions of:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant: Adv. P.R. Cronje
On
instructions of:
Office
of the State Attorney
BLOEMFONTEIN