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[2016] ZAGPPHC 624
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Ncapayi v Road Accident Fund (43070/2013) [2016] ZAGPPHC 624 (14 April 2016)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:
28/4/2016
CASE
NO: 43070/2013
In the matter between:
NO-ELE
NCAPAYI Plaintiff
And
THE ROAD ACCIDENT
FUND Defendant
JUDGMENT
MOLOPA-SETHOSA
J
[1]
The Plaintiff, No-Ele Ncapayi ("plaintiff”) has instituted
an action against the defendant for damages arising out
of a motor
vehicle collision which occurred on 10 September 2011 at Khayelitsha,
Cape Town, between a motor vehicle with registration
letters and
number CA 5[…] ("the insured vehicle") there and
then driven by one Craig Stanley ("the insured
driver"),
and the Plaintiff, who was a pedestrian at the time of the collision.
[2]
The issue of liability has been settled on the basis that the
defendant is liable to pay to the plaintiff 100% of the agreed
or
proven damages. When the matter came before court for hearing on the
quantum of damages, the parties had reached an agreement,
in terms
whereof the defendant agreed:
2.1.
to pay to the plaintiff 100% of the plaintiff’s proven or
agreed damages.
2.2.
to pay the plaintiff’s past hospital and medical expenses in
the amount of R4 594. 60.
2.3
to provide the plaintiff with an undertaking in terms of
section
17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
("The Act")
in respect of future medical and related expenses.
2.4
pay the plaintiff an amount of R700 000.00 (seven hundred thousand
rand only) in respect of general damages.
[3]
All the court was called upon to do was to adjudicate on the
plaintiff’s claims for past and future loss of earnings;
more
specifically as regards this issue, the only real issues are whether
or not the plaintiff would have progressed at his work
place from
elconop 2 level to elconop3 level, and further to basic artisanship;
and the contingency to be applied to his expected
injured earnings.
[4]
It is not in dispute that the plaintiff is employed at Goddards
Electrical (Pty) Ltd ("Goddards") as a semi-skilled
electrical operator. It is also not in dispute, and this appears on
plaintiff’s salary advice, that the plaintiff as at the
time of
the collision on 10 September 2011 was on job grade elconop2, which
he allegedly obtained in 2004. At issue is whether
had he not been
involved in the accident in question herein he would have progressed
to the level of elconop 3 and further to basic
artisanship.
[5]
The parties had agreed that the reports filed by the plaintiff’s
expert, Dr Jason Sagor ("Dr Sagor"), an Orthopaedic
Surgeon, in terms of Rule 36(9)(a), dated 08 January 2013 will be
accepted as evidence before court and that there is no need to
call
the said expert witness to give viva voce evidence.
[6]
The report of Dr Jason Sagor is to the effect that he saw the
plaintiff for the first time on 15 November 2012, approximately
one
year after the accident. That by that time osteoarthritis had already
developed in both the knee joints. That the plaintiff
has been
disabled and is functionally impaired by these knee injuries. Further
that the plaintiff was still working but struggled
to cope with his
employment demands in view of his knee symptoms and limited mobility;
that the plaintiff’should ideally
be doing sedentary or
semi-sedentary work.
[7]
He further states that the plaintiff will require surgical
intervention, including arthroscopic assessments and debridement
of
both knees probably in his 50's, preferably 60's; and ultimately knee
replacements of both knee joints. That the debridement
will cause the
plaintiff to be unable to work for 3 weeks post operatively and the
knee replacement procedures will each require
him to be off work for
4 months post operatively. He states that the injuries to plaintiff’s
knees were severe and as a result
he will continue to suffer
permanent and serious long term impairment in terms of his working
life and personal life.
[8]
Dr Sagor states in his report that he saw the plaintiff for an
updated report on 2 March 2015 and that his views remained as
before.
He restates his concerns with regards the osteoarthritis which has
says have sat in; he states that the plaintiff is significantly
compromised with regard to employment and especially with regard
finding alternative employment in the open labour market.
[9]
He is of the view that the plaintiff will not be able to work as an
electrical operator beyond the age of about 58 years.
[10]
The plaintiff led the evidence of Martinette Le Roux, an occupational
therapist. Her qualifications were not in dispute. She
confirmed the
contents of her report dated 15/12/2012 and the addendum report dated
20 March 2015. She testified that she first
saw the plaintiff on 23
October 2012, approximately one year after the accident. That she
interviewed the plaintiff and assessed
his functional capacity. That
at that stage the plaintiff was placed in an alternative position as
a store man due to the plaintiff
being unable to perform his former
duties, which included
inter alia
crouching, kneeling,
climbing ladders and scaffolding.
[11]
She testified that based on her assessment of the plaintiff at that
stage, she was of the opinion that the plaintiff no longer
had the
functional capacity to perform electrical duties. That she saw the
plaintiff again on 26 February 2015 for purposes of
an updated
report; and that osteoarthritis had set in as expected.
[12]
She testified that the plaintiff has in the meantime resumed his
previous electrical duties, that he however remained unable
to
perform his work as before. Further that his employer has been
accommodating him up to that stage, and that as an electrical
operator plaintiff continued to experience marked difficulty in
performing electrical work and he was no longer able to perform
all
of his electrical duties. That plaintiff required more assistance,
was unable to work below knee level, was unable to negotiate
scaffolding, and to carry heavy items. That the plaintiff mainly
worked on the ground floor level.
[13]
She testified that Mr Craig Kelly "(Kelly") confirmed to
her that the plaintiff was no longer performing his work
as before
due to his shortcomings as set out above. That Kelly also reported to
her that mentally the plaintiff was different after
the accident, he
was slow to comprehend and could not be given multiple instructions,
he also worked slower than before and required
supervision, whereas
before he/plaintiff could and did supervise others. Further that
Kelly also reported to her that they have
accommodated plaintiff
extensively, and should plaintiff lose his current employment he
would have significant difficulty finding
alternative employment.
That Kelly also reported that prior to the accident the plaintiff had
the ability to progress, but that
since the accident this was no
longer possible.
[14]
Under cross examination she confirmed that during her second
assessment of the plaintiff, the plaintiff could negotiate stairs
from the ground floor to the sixth (6
th
) floor, whereas
during her first assessment he could not. That after the accident
there is improvement on the plaintiff, but that
however, the
plaintiff is unable to perform all the duties he is required to
perform, therefore he remains incapacitated. She stated
that though
there was some improvement on the plaintiff, that she would not call
it a considerable improvement. That the plaintiff's
main problem was
lifting and carrying of heavy items upstairs.
[15]
She stated that she had discussed the plaintiff's high blood
condition with the plaintiff but that the plaintiff had told her
that
though he had high blood pressure he was not put on any medication
for it. That on her second assessment of the plaintiff’she
did
not assess plaintiff on his ability to lift and carry heavy items
because that might have increased the plaintiff's blood pressure.
She
stated that the blood pressure was not accident related.
[16]
She confirmed that during her second assessment, the plaintiff had
actually resumed his previous position as an electrical
operator;
stating that that did not mean that the plaintiff was able to perform
his duties as before. She further stated that she
did not find out
from the plaintiff’s employer what the duties of an assistant
electrician are to be able to compare whether
or not the plaintiff’s
condition is such that he was able to deal with his situation;
stating that she only focussed on plaintiff’s
physical
situation.
[17]
The next witness to testify was Renee De Wit, a neuro-psychologist.
Her qualifications were not disputed. She confirmed the
contents of
her report dated 02 December 2014. She testified that she first saw
the plaintiff on 28 November 2014. That the Plaintiff
reported to her
that he has no memory of the accident and that his first
recollections are of waking up at an uncertain time, that
he has
vague memories of his twelve days' admission to hospital. In her
report she states that the plaintiff’said that he
was still
confused when he returned home, whereas his wife said that he
recognised everyone at home and did not seem confused.
[18]
She testified that Kelly reported to her that pre-accident the
plaintiff had the ability to progress to elconop3 level and
that post
the accident he does not see plaintiff going to elconop3. That Kelly
informed her that post accident the plaintiff was
slower to
understand instructions, and that plaintiff was no longer able to
take charge/supervise of a group of workers whereas
before he could.
In her report she stated that the project manager, Urtel, believed
that the plaintiff was doing well and that
there were no difficulties
with the plaintiff at the workplace.
[19]
She testified that on assessing the plaintiff’she found some
deficits; that she found the plaintiff to be slow to understand
and
to perform tasks; and slow to think and respond; that this is not
related to his/plaintiff's educational level, [plaintiff
is said to
have reached standard 5/grade 7 as his highest school qualification].
She testified that she thinks that somehow plaintiff
got minor head
injury which affected his cognitive abilities.
[20]
Under cross examination she stated that from the neuropsychological
test that she did, plaintiff might have suffered a level
of head
injury. She stated that she was informed by Kelly that the plaintiff
had reached elconop2 level in 2004. She stated that
the plaintiff's
level of independence has not changed; that the plaintiff manages his
finances and has some level of independence
even after the accident.
[21]
The next witness to testify is Craig Kelly ("Kelly"). He
testified that he knew and worked with the plaintiff before
and after
the accident. That he is a qualified electrician and has worked for
Goddards Electrical for the last 20 years, from the
age of 17 years.
[22]
He testified that he has known and worked with the plaintiff since
1998. That after he/Kelly qualified as an electrician and
became a
foreman, and from around 2002 the plaintiff worked directly under him
for extended periods of time on multiple projects.
That he came to
know and experience the plaintiff as a particularly competent
employee and described him as an excellent worker,
who was dedicated,
loyal and eager to improve himself.
[23]
He further testified that in 2003/2004 the plaintiff had progressed
from a general worker to elconop2 level, which is the equivalent
of a
semi-skilled electrician. That the plaintiff was keen to progress
further, made enquiries in that regard and was nominated
by him/Kelly
in 2006 and 2007 for further training in elconop3, however, that
plaintiff was not selected/chosen by management for
elconop3. He
testified that from 2006 onwards Goddards was heavily involved in
numerous projects in preparation for the 2010 Soccer
World Cup and
that as a result production took preference and few employees were
sent for further training. That after the 2010
World Cup business
normalised; Goddards retrenched contract workers and started sending
permanent employees for training again.
Further that had it not been
for the accident, plaintiff would have been sent for elconop 3
training and would have attained elconop3
by September 2012.
[24]
He testified that had the accident not occurred, the plaintiff would
have been nominated again for elconop III in 2012 and
maybe in 2 to
2Y2 years thereafter he would have progressed to basic artisanship.
That having regard to the Plaintiff’s skill
as an electrical
worker, he would have been able to progress to the basic artisan
level. That after the accident, there was a marked
decline in the
Plaintiff’s ability to meet the requirements of his job; and
that he/Kelly accommodated the plaintiff by giving
him store room
duties for more than a year, but was instructed by management that
the plaintiff had to go back on tools because
the company could not
afford the wages of a semi-skilled electrician working in a
storeroom. He further testified that he has attempted
to shelter the
plaintiff. That however, another foreman or employer will probably
not be as sympathetic to the plaintiff, due to
the fact that the
plaintiff no longer meets the requirements of his job.
[25]
He testified that that the Plaintiff’s level of education
(standard 5/grade 7) would not have been an obstacle and that
the
plaintiff would have been accepted for such basic artisan training;
that the plaintiff’s age and school qualification
would not
have impeded his intended progression to elconop3 or basic artisan
levels. He reiterated that with a grade 7 the plaintiff
would have
qualified and would have been accepted for training as an artisan.
[26]
Under cross examination he stated that the final say in choosing
someone to go for elconop 3 training was with management.
He stated
that when he nominated the plaintiff for elconop 3 it was not a
formal thing, that he just wrote something on paper.
He stated that
he did not give any of the plaintiff’s expert witnesses any
document that showed them the policy required
at Goddards for
advancement/progression of employees to higher level; and or what
standard of formal qualification was required.
Neither did he give
them any policy of the company. He stated that there is no policy on
age restriction or level of education
to advance to elconop 3. He
stated that due to the workload at the company the plaintiff did not
go for advanced/elconop 3 training
between 2006 and 2011; that the
company did not send anyone for training in that duration.
[27]
He stated that for as long as there was workload at the workplace,
there is a chance that plaintiff would not have gone to
advance
level. He stated that towards the end of 2011 the company reduced
nearly 400 staff members, which enabled them in the following
year to
send employees back to school for training due to the fact that they
were not as busy as they were in the past.
[28]
He stated that however he does not have any written confirmation to
confirm that the plaintiff would have gone to attend the
elconop3
course during that time i.e. around 2012.
[29]
Asked what his qualification was m relation to the plaintiff’s
qualifications, he stated that it was completely different,
that
he/Kelly was the site foreman and that he is an artisan. Asked what
the requirements was to become an artisan, he stated that
one would
have to be a qualified electrician; that it is practical training
that one does at college. Further asked what the minimum
formal
educational qualifications are to become qualified electricians, he
stated that it is one's practical experience and theory
side. He
stated that the plaintiff would have been accepted for artisanship
with grade 7.
[30]
He stated that there were times when the plaintiff did not work with
him, i.e. that plaintiff worked with other groups/teams,
under other
person's supervision and that he/plaintiff worked as a semi
skilled electrician. That in 2004 he lost plaintiff
to some other
supervisor, plaintiff came back to work under him in 2006 until the
beginning of 2011. That they were involved with
projects from 2006 to
2010, and plaintiff was working under him. Between 2004 and 2006
plaintiff was no longer working with him.
[31]
He stated that he does not know what criteria management uses to
decide on who is going for further training.
[32]
The next witness to testify was Esther Auret Besselaar, an Industrial
Psychologist. Her qualifications were not disputed. She
testified
that she has more than 30 years' experience of assessing people as a
Human Resources consultant,
inter alia
as Human Resources
manager for Old Mutual.
[33]
She testified that she had a site meeting at the plaintiff’s
place of employment which was attended by plaintiff’s
attorney,
the project manager at Goddards Mr. Urtel ("Urtel"), Kelly,
as well as a representative of Goddards HR administration,
Ms
Adriaanse, held on 25 March 2015. That they informed her that
Plaintiff progressed from general assistant to elconop2 level;
i.e.
went for a trade test and was placed at elconop2 level.
[34]
She confirmed the contents of her report dated 20 June 2014 as well
as the addendum to her report dated on 30 March 2015. She
further
confirmed that she had discussions with the defendant's Industrial
Psychologist Ms Linda Krause ("Krause") and
that they
prepared joint minutes dated 15 April 2015.
[35]
She testified that had the accident not happened, the plaintiff would
have continued working at elconop2 level, that there
was no
documentation available from the employer but that this was not
unusual.
[36]
She testified that given that the plaintiff would have 24 to 25 years
left of his working life ((had the accident not occurred),
and that
plaintiff loves his job, worked with skilled people like artisans and
that Goddards contributed to skills development,
that plaintiff would
with time, in 15 years have gone for artisanship training.
[37]
She testified that according to Messrs. Urtel and Kelly, plaintiff
would have probably qualified for elconop3 by end of 2012;
further
that Urtel and Kelly informed her that since plaintiff was already
exposed to reading meters and supervising operators
doing an
electrician's duties, he would have reached artisanship because he
had been exposed to that kind of work.
[38]
She testified that the plaintiff had 40% serious orthopaedic
injuries, as well as neuro-psychological deficits. That he was
slower
or took longer with tasks.
[39]
She testified that post accident the plaintiff would no longer be
considered by his employer for further training. That the
plaintiff
was in fact sheltered by Kelly in his current job. That pre-accident
plaintiff would have retired at 65 years old and
post-accident
plaintiff is compromised, that his job security is at risk,
especially if he can be moved to work under a different
foreman. That
it is unrealistic for a big company as big as Goddards that has many
workers to keep a person like the plaintiff
indefinitely. That it was
a big risk.
[40]
She testified that if plaintiff were to lose his job at Goddards he
would have to compete with able bodied persons. That the
plaintiff is
unsuited to his current job.
[41]
Under cross-examination she stated that it is management that has the
final say as to who goes for further training, [as in
when the
supervisor Kelly allegedly nominated the plaintiff but management did
not choose him]. She stated that there is no reason
to suggest that
the plaintiff would have been neglected for another 25 years.
[42]
She conceded that taking into account that the plaintiff had been on
elconop level 2 since 2004 to 2011 when accident happened;
further
that the plaintiff had allegedly been nominated by his supervisor but
not chosen by employer to attend elconop3 level training,
that this
would have an impact because the process was not guaranteed.
[43]
She confirmed that the plaintiff’s income since the accident
had not totally stopped
[44]
She disagreed with Krause's opinion that the Plaintiff would not have
progressed any further. She explained that, in her view,
on the
available evidence, the Plaintiff had the desire, ability and
opportunity to have progressed to at least basic artisan level.
[45]
The next witness that testified is Alexander John Munro, a forensic
actuary. His qualifications were not in dispute. He confirmed
his
reports dated 16 April 2015 and 17 April 2015.
[46]
He testified that his calculations are based on the information which
appears on the joint minutes of Besselaar and Krause
(the Industrial
psychologists); as well as from plaintiff’s fortnightly pay
slips [22 April 2014 - March 2015 pay slips].
He testified that he
analysed each pay slip to get the information which confirmed the
information in the joint minutes. That he
set up assumptions
regarding basic salary to reflect uninjured career path and injured
career path as postulated by Besselaar,
leaving contingencies to the
court. He used the income figures and overtime percentages agreed
upon by the industrial psychologists
in their joint minute. He used
the career progression opined by the Plaintiff’s industrial
psychologist in the joint minute.
He stated that the statutory cap is
not applicable to this claim and that the court can apply its own
contingencies to the calculated
amounts.
[47]
He stated that 22 April 2014 to March 2015 was a long enough period
for him statistically to consider an average; that it was
the best
information they had available from all the pay slips and IRP5 's in
the past and that the data was consistent within
that period,
averaging about 40.5%.
[48]
He calculated on three postulations:
1.
First, based on Besselaar's opinion that plaintiff would have
proceeded to the level of basic artisan;
2.
Second, an assumption that plaintiff has a 50% chance of promotion to
level of basic artisan;
3.
Third, an assumption that the plaintiff would have gone to elconop 3
in September 2012, and remained there uninjured.
[49]
That concluded the plaintiff’s evidence. There is no counter
actuarial report on behalf of the Defendant.
[50]
The defendant led the evidence of Linda Joyce Krause, an Industrial
Psychologist. Her qualifications were not in dispute. She
confirmed
that she was co-author to the joint minutes dated 15 April 2015 with
plaintiff’s Industrial psychologist, Ms Besselaar.
[51]
She testified that she had an issue with plaintiff’s career
progression after the accident; that her concerns are based
on
plaintiff’s pre accident history, that he would unlikely have
proceeded to artisan level or even further, given that since
2003 to
2011 he had obtained elconop2 level, which was a 2 weeks training
course. That since October 2003, until the accident in
2011 plaintiff
has never attempted to further his qualifications with elconop level
3, which is a few weeks' training. That her
main concern issue is
that plaintiff’s pre-accident history does not allow for career
progression to the level of artisan,
based on his qualification.
[52]
She testified that the level of an artisan requires minimum N2 which
is the equal of grade 11, with emphasis on mathematics
and science,
with many years of experience. She testified that she does not agree
that plaintiff would have progressed to artisan
level with grade 7 as
his highest educational qualification.
[53]
She testified that in all likelihood, looking at the plaintiff’s
pre accident career history she cannot foresee
that plaintiff
would have become an artisan, regard being had to the fact also that
he has not attempted since 1997 when he started
working.
[54]
She testified that it is generally accepted that one reaches one's
career plateau at the age of 45 years old. That taking into
account
that the plaintiff was 41 years old when he was involved in the
accident herein, she does not see him having progressed
beyond 45
years/his plateau.
[55]
She testified that she disagrees with Besselaar's opinion on job
security; stating that she/Krause has contacted the HR department
at
Goddards and spoke to Ms Adriaanse, the payroll manager, as well as
with the HR consultant, Ms Riana Noord ("Noord"),
who is
the consultant between the bargaining council and the employees on
elconop I, 2 and 3; that according to Adriaanse and Noord
there was
no indication that fulltime employees [like plaintiff] would be
retrenched. They informed her that notices were out only
in respect
of contractual employees. Further that Noord informed her that the
plaintiff can still apply to be trained on elconop3;
that every
employee can ask to be trained and the company is proactive in that
regard.
[56]
She testified that there was no indication that the plaintiff would
be dismissed or retrenched. That according to labour laws
and
stipulations a person cannot be dismissed on grounds of illness.
[57]
Under cross-examination she stated that a person can be dismissed for
under performance if there has been warnings dealt with
under labour
laws.
[58]
She stated that having gone through expert reports she concedes that
there are limitations on the plaintiff, and that he could
retire
between the age of 58 and 60 years old; but that there were no
disciplinary actions taken against plaintiff for under performance.
[59]
She stated that the plaintiff would find it difficult to find a job
in the open labour not only as a reason as of his physical
health/injuries or sequelae of the accident, but also as a result of
his educational level.
[60]
She reiterated that pre-accident, she does not see plaintiff having
progressed to artisan level.
[61]
She stated that before the accident, the plaintiff had 8 years on
elconop2 level; that he could have stayed on level 2 for
1 year
according to employer information and could have applied for elconop3
but did not. She however conceded that plaintiff could
at least have
progressed to an elconop3 level.
[62]
Put to her that according to Kelly plaintiff was nominated for
elconop3 but due to 2010 world cup involvement he was overtaken
by
events, she/Krause stated that the plaintiff got his elconop2 level
in October 2003 and that he could have already attempted
to do
Elconop3 level in 2004.
[63]
She further stated that according to Ms Noord, employees are granted
opportunities, and that prior to the accident plaintiff
could have
progressed if he wanted to, but that plaintiff has not done anything
pre-accident to advance himself. That plaintiff’s
pre
accident career history does not testify to the effect that he would
probably have progressed to Elconop3 level.
[64]
Pertaining to artisanship, she stated that she/Krause has studied the
bargaining council's requirements and that she has also
spoken to Ms
Noord. That for plaintiff to engage in artisan studies he/plaintiff
would have had to have at least N2 level or grade
11 with mathematics
and science, together with a lot of experience. That with only grade
7 level of education plaintiff could not
have coped with the demands
of artisan studies; that she does not foresee plaintiff progressing
to artisan level.
[65]
She reiterated that a person reached one's career plateau at the age
of 45 years old; that it was far-fetched that he/plaintiff
would
progress to artisan training, regard also being had to the fact that
he would have required at least grade 11 or matric before
doing
artisan courses and also looking at his career history pre-accident.
[66]
That concluded the evidence for the Defendant, and the evidence for
the whole case.
[67]
Counsel for the Plaintiff argued that the court should find on the
probabilities that had it not been for the accident and
the injuries,
the Plaintiff would have progressed to the elconop3 level and
thereafter to the basic artisan level, as opined by
Ms Besselaar.
That his earnings would have been as reflected in the actuarial
report by Mr Munro.
[68]
Counsel for the defendant on the other hand argued that taking into
consideration that the plaintiff joined Goddards in 1997,
only
acquired elconop2 level in 2004, and until 2011 when he got involved
in the accident herein there is no indication what stopped
the
plaintiff in the 8 years to advance himself to elconop 3 level,
[according to Krause from the employer's information plaintiff
acquired elconop2 level in October 2003]. Further that regards being
had to the plaintiff highest education level, grade 7; he
would not
be able to advance to a higher level of basic artisanship. The
defendant further submitted that the court should draw
a negative
inference from the fact that the plaintiff was not called to testify
in his case, to confirm what was conveyed to his
witnesses.
[69]
It is trite that the plaintiff has to prove his case on a balance of
probabilities. As already stated here above, the issue
to be
determined is whether or not the plaintiff would pre-accident have
progressed at his work place from elconop 2 level to elconop3
level,
and further to basic artisanship; and the contingency to be applied
to his expected injured earnings.
[70]
Briefly analysing the evidence of the various witnesses set out
above, if one has regard to the evidence of Le Roux, it appears
that
she was reluctant to concede that there was marked improvement in the
physical condition of the plaintiff. In the addendum
to her report,
after the second assessment of the plaintiff’she stated in her
addendum that "he remains able to negotiate
stairs, reaching the
sixth floor. She however failed to acknowledge this to be a
significant improvement compared to the first
time she assessed the
plaintiff, which was only about a year after the accident, and surely
with time there were improvements as
appears in her report.
Unfortunately Ms Le Roux did not come out as an objective witness who
had come to assist the court in coming
to a fair assessment of the
facts. She was determined to paint a picture of a plaintiff with
marked disabilities; but if plaintiff
could negotiate
h
stairs to the 6
th
floor it shows that there
was some marked improvement in his condition, and he was not rendered
as useless as his witnesses sought
to portray before this court. I
may just state that the plaintiff had the opportunity to confirm what
Le Roux said; but he never
testified in his own case, and no
plausible explanation was proffered why he was not called as a
witness in his own case to at
least confirm what his witnesses said
about him pre and post the accident. Therefore, all that was said
about him was not confirmed
by the plaintiff himself. An adverse
inference can safely be drawn against the plaintiff on failure to
call him as a witness.
[71]
According to De Wit De Wit on her analysis, from what she was told by
the plaintiff and Kelly amongst others, the plaintiff’seems
to
have suffered some head injury during the accident. However, as
appears from the hospital records, the Glasgow scale of plaintiff
on
admission at Tygerberg hospital on admission was 15/15.
Plaintiff’seems to have been fully conscious when he was
admitted
to hospital after the accident. In her report she states
that the plaintiff’said that he was still confused when he
returned
home, whereas his wife said that he/plaintiff recognised
everyone at home and did not seem confused. The plaintiff has not
come
forward to explain to the court why he'd have no recollection of
the accident; under the circumstances all the court can do is to
draw
an inference that plaintiff to some extent sought to exaggerate his
sequelae to his experts. Kelly's evidence that plaintiff
forgets
tasks is very suspect, he seemed set to exaggerate plaintiff’s
sequelae.
[72]
It is significant to note that from the evidence of De Wit, on first
encounter with Kelly, he/Kelly only mentioned that plaintiff
would
have advanced to elconop3 level had the accident not occurred;
he/Kelly did not mention artisanship at the first instance
he had
with to De Wit. Surely if that was the case he would have mentioned
artisanship at the first occasion he had. In her report
she mentions
a need for the appointment of Curator Bonis for the plaintiff,
however this aspect was not even touched and/or alluded
to by the
plaintiff’s legal team.
[73]
Looking at Kelly's evidence, there is no plausible explanation why
since 2003/4 plaintiff was not /selected/chosen by his
employer/management to go for elconop3 training despite the alleged
nomination by Kelly; further there is no basis upon which Kelly
substantiates why he says plaintiff would have gone for elconop3
training in September 2012. In her report dated 20 June 2014
Besselaar stated that most probably plaintiff would have continued
working in elconop2 level for another 2-3 years and thereafter
qualify for elconop3. Meaning that probably plaintiff would have
progressed to elconop3 level in 2013 or even 2014. Kelly seems
to
work on speculation/thumb suck. Nothing he says is supported by any
documentary proof. According to Kelly, he was not part of
the
decision makers who choose who to attend the course/training. There
is no reason provided why plaintiff was allegedly not chosen
in 2006
and 2007 after he was allegedly nominated by Kelly. Kelly stated that
maybe it is because there were 500 employees from
other supervisors
as well to choose from. From the evidence of Besselaar the company
had 100 permanent employees. It is doubtfully
that the company would
have sent contract/temporary employees for further training leaving
behind their permanent employees. Kelly
in my view does not seem to
be completely candid with this court. I may just state that there are
contradictions in Kelly's evidence.
Under cross examination, asked
why did plaintiff not go for elconop3 training between 2004 and 2011
he stated that from 2006 no
employee was sent for training because
they were inundated with work in preparation for the 2010 World Cup.
This is inconsistent
with him saying that he nominated the plaintiff
for elconop3 level training in 20006 and 2007. His evidence is not
reliable. From
the relationship he had with the plaintiff as outlined
in his evidence he cannot in my considered view be objective. He
seems to
have been in effort to exaggerate plaintiff's sequelae in
view.
[74]
Pertaining to whether plaintiff would have eventually progressed to
artisan level, Kelly stated that due to the practical experience
that
plaintiff had he would have progressed to artisan level. The
impression created was that he would not be required to do extensive
theory as well to eventually qualify for artisan level. Asked what
qualifications he (Kelly) had to be an artisan he somehow dodged
the
question; he never told the court what qualifications he had; he
simply stated that the plaintiff had extensive practical experience.
That was not answering the question. If one has regard to Linda
Krause's undisputed evidence that to become an artisan, one required
to go through extensive theory involving maths and physics, and that
artisanship levels equals N2 or Grade 11, why was Kelly not
willing
to assist the court in this regard since he had testified that he was
an artisan. In his answer under cross-examination
he did not say that
he (Kelly) had extensive practical experience leading him to artisan
level; he simply did not answer the question
what qualifications he
had. This would have enabled the court to assess if the plaintiff
would have attained/progressed to the
artisan level within a short
space of time as alleged by Kelly and his experts.
[75]
Looking at the evidence of Besselaar, when she says that plaintiff
would have at some stage progressed to do basic artisanship,
save for
what she says she was told by Urtel who was not even called as a
witness, and Kelly who the court found not to be objective,
she did
not tell the court what her independent investigations pertaining to
what would be required basically before one could
become an artisan
was; as done by Krause. As already stated above, Kelly did not even
answer questions on what his highest school
qualification was and/or
what the requirements was to become an artisan. The court has found
Kelly to be dodgy on this aspect.
In fact in her initial report
[20/06/2014], after her independent assessment in my view, Besselaar
stated that the plaintiff would
have remained on elconop3 level until
his retirement age at 65 years old.
[76]
On plaintiff’s job security, Besselaar stated that it is
unrealistic for a big company as big as Goddards that has many
workers to keep a person like the plaintiff indefinitely. That it was
a big risk for the plaintiff. She further stated that post-accident
plaintiff is compromised and that his job security is at risk,
especially if he can be moved to work under a different foreman.
This
was not confirmed by the company. In fact in her initial report she
stated that Urtel initially informed her that he did not
see anything
wrong with plaintiff’s performance. And there is evidence on
record that post accident, the plaintiff was at
some stage sent to
Upington with others on a project. Surely management would not risk
sending someone they did not trust would
do his/her work properly
outside his territory. I find her assertions to be speculative, no
one from management/ the employer's
side testified to this effect.
Surely our country is governed by the Constitution and labour laws,
an employer would not just dismiss
an employee because of injuries
sustained by such employee, and due processes would have to be
followed if a need arose.
[77]
According to Krause the plaintiff would not have progressed to
artisan level because plaintiff was at an advanced age; [she
accepted
career plateau of people to be 45 years old]. Further, the plaintiff
had attained elconop level 2 in October 2003, and
up until September
2011 there was no other progression in his career history, a lapse of
8years, therefore she contends that there
were no strides to progress
to elconop3. Plaintiff was therefore not a likely candidate for rapid
career progression therefore
would have remained at elconop2 level
until his retirement. It is so that there is no concrete evidence
that plaintiff made any
effort in 8 years from 2003 to 2011to undergo
further training, save for the conflicting evidence of Kelly which is
not corroborated
by management and/or documentary proof.
[78]
Under cross examination Krause conceded, reluctantly so, that,
especially taking into account plaintiff's career history prior
to
the accident, that there is a chance, though remote, that plaintiff
might probably have progressed to elconop3 level, but she
had no
confidence that that would happen.
[79]
With regards plaintiff's progression to artisan level, which is equal
to N2 or grade 11 with mathematics and physics, her view
is that
given plaintiff's age, standard/level of education and career
history, it was highly unlikely that plaintiff would have
gone to
basic artisanship level.
[80]
She is the only expert that made an effort to investigate what the
requirements would be to get to basic artisanship. She made
concessions where necessary. I found her to be an objective witness.
[81]
The court takes into account that plaintiff who was employed by
Goddard Electrical company in June 1997 got his elconop II
level in
October 2003. The accident happened in September 2011, plus/minus
8years after he had obtained his elconop2 level. There
is no
plausible explanation why he did not progress to elconop3 level,
which is said to be a 2 weeks course, between October 2003
and
September 2011, save for contradictory evidence of Kelly that he
(Kelly) had nominated plaintiff in 2006 and 2007 to attend
the
elconop3 level course. However, on his version, nomination does not
necessarily guarantee/confirm that the plaintiff would
indeed attend
the course, as according to Kelly, the decision to appoint/choose
employees to attend courses lay solely with the
management. I have
already dealt with Kelly's evidence and evidence pertaining to this
aspect above. According to Krause, as informed
by Noord, an employee
can self apply to attend the course.
[82]
It is so that the plaintiff sustained considerable injuries in the
accident herein. Looking at his career history it is not
in dispute
that the plaintiff’s highest education level is grade 7. He was
41 years old when he was involved in this accident.
Since his
employment at Goddards in 1997, he only attained elconop2 level in
October 2003, which is about 7 years from date of
his employment. At
the date of the accident (10/09/2011), it had been about 8 years
since he had obtained his elconop2 level. Kelly
says plaintiff would
have progressed to elconop3 level by September 2012; as already
stated above, there is no basis laid out for
this assumption. This is
not even a guarantee because on his own version, he/Kelly is not the
one that chooses employees to attend
courses.
[83]
In my view, it is highly improbable on the evidence before this court
that he (plaintiff) would have progressed to basic artisan
level.
This has nothing to do with his intellectual capacity. Looking at his
age, his career history within Goddards and how he
progressed, his
educational qualification/grade 7, circumstances are such that he
would in all probabilities not have even attempted
to progress to
basic artisan level. On Besselaar's independent assessment, in her
initial report, had the accident not happened,
the plaintiff would
have remained in elconop3 level until his retirement at the age of
65years old. The plaintiff was not even
called as a witness in his
own case to testify as to how he saw himself progressing, and/or to
confirm what his witnesses said
about him.
[84]
As already stated in par [77] here above, it is so that Linda Krause
conceded under cross examination that there is a chance,
though
remote, especially taking into account plaintiff’s career
history prior to the accident, that plaintiff might probably
have
progressed to elconop3 level. It is only on this basis that the court
accepts that on the probabilities, and on the facts
there is a small
chance that plaintiff might one day have progressed to elconop3
level, though doubtful in my view. I doubt that
such progression
would have been in September 2012 as alleged by Kelly, which differs
with what Besselaar stated in her initial
report; and this I say
taking into consideration plaintiff’s career history prior to
the accident. People in management were
not called to enlighten the
court why from 2003 to 2011 (despite 2 alleged nominations by Kelly)
was plaintiff not chosen to attend
the course for elconop3; and/or
why he was twice (2006 and 2007), as alleged by Kelly, not chosen to
go for elconop3 training to
advance himself. According to Krause, as
informed by Noord, employees themselves apply and are encouraged to
advance themselves
to a higher level, and plaintiff did nothing to
advance himself to elconop3 level. Unfortunately Noord was also
called as a witness.
[85]
Taking into consideration all the facts before this court, and on the
totality of the evidence before this court, as well as
the
observation and concerns raised I am of the view that the best way to
deal with this matter is to apply higher contingencies;
[higher than
the contingencies suggested by both counsel, especially on past loss
of earnings]. Both parties are agreed that 50%
contingency on future
loss of earnings is reasonable.
[86]
I have considered the submissions by both counsel as well as all the
evidence before this court. In my view a contingency of
50% on the
Net Value of Future loss of income and a contingency of 40o/o on the
Net Value of the Past loss of income will be just
and equitable in
the circumstances.
[87]
The award to be made is based on Munro's 3rd report dated 17 April
2015, where he calculated plaintiff’s loss of earnings
based an
assumption that the plaintiff would have gone to elconop3 in
September 2012, and remained there uninjured. I however do
not accept
that plaintiff would have progressed to elconop3 level in September
2012; hence, amongst others, a higher contingency
on past loss of
earnings.
[88]
On all the facts before the court, the following order is made:
1.
The defendant is ordered to pay to the plaintiff's attorneys the sum
of Rl 518 769.60 (one million five hundred and eighteen
thousand
seven hundred and sixty nine rand sixty cents) only, made up as set
out below, by way of a lump sum payment, details of
which are set out
hereunder ("the capital payment");
2.
The capital payment is made up as follows:
2.1
Past hospital and medical expenses: R4 594. 60 (four thousand five
hundred and ninety four rand and sixty cents only);
2.2
General damages: R700 000. 00 (seven hundred thousand rand only);
2.3
Past and future loss of earnings: R8 l 4 175 eight hundred and
fourteen thousand one hundred and seventy five rand only)'
3.
The defendant shall furnish the plaintiff with an undertaking in
terms of
Section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
("the undertaking"), to compensate the Plaintiff for 100%
of the costs relating to the future accommodation of the plaintiff
in
a hospital or nursing home or treatment of or rendering of a service
or supplying of goods to the plaintiff after the costs
have been
incurred and on proof thereof and arising from the collision which
occurred on 10 September 2011.
4.
The defendant is ordered to pay the Plaintiff’s taxed or agreed
party and party costs on a High Court scale, which costs
shall also
include the costs of two (2) counsel as well as plaintiff’s
costs as far as the experts are concerned, including
the costs of
obtaining reports and the reasonable preparation, reservation and
qualifying fees of the following experts:
4.1
Dr. Jason Sagor (Orthopaedic Surgeon)
4.2
Renee De Wit (Neuro Psychologist)
4.3
Martinette Le Roux (Occupational Therapist
4.4
Esther Auret Besselaar (Industrial Psychologist)
4.5
Munro Consulting (Actuaries)
5.
The plaintiff’s attorney's trust banking account details are as
follows:
Account
name:
Adendorff Inc.
Bank:
First National Bank
Branch
Name:
Adderley Street
Branch
Code:
201-409
Account
number:
6[…]
____________________
L M
MOLOPA - SETHOSA J
JUDGE
OF THE HIGH COURT