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[2016] ZAGPPHC 819
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Kleyngeld v Road Accident Fund (65774/2012) [2016] ZAGPPHC 819 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
9/9/2016
CASE
N0.:65774/12
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
KLEYNGELD
S
…...........
Plaintiff
and
ROAD
ACCIDENT
FUND
…........
Defendant
JUDGMENT
Hughes
J:
[1]
This is a short judgment to provide guidance to the parties as
regards my finding on the applicable contingency to be applied
on the
future loss of earning capacity calculation agreed upon and provided
by the actuary.
[2]
Both Adv Du Plessis SC, for the plaintiff and Adv van Zyl, for the
defendant, agree that the only issue for determination is
that of the
applicable contingency to be applied to the calculation already
provided by the actuary, Johan Sauer.
[3]
Dr A. Strydom and Ms Moipone Kheswa are the two industrial
psychologists who were instructed by both the plaintiff's attorney
and the defendant's attorney respectively. Dr. Strydom placed
reliance on the joint minutes of the occupational therapists, Ms
E
van Zyl and Ms Ferreira. Whilst Ms Kheswa had not had sight of this
joint minute, however, she had had sight of their individual
reports.
[4]
The industrial psychologists both agree that the plaintiff would have
completed grade 12, would have studied towards a B-Ed
Degree, which
would take four years to complete. The plaintiff would progress from
a teacher to Head of Department (HOD) by age
50 and would retire at
the age of 65. This pre - accident scenario has not changed
post-accident.
[5]
Adv Du Plessis pointed out the following:
i.
The occupational therapists state that the plaintiff would be
well suited for sedentary work having regard to the sequelae of her
injuries arising from the collision.
ii.
They also agree that with the appropriate intervention and
ergonomic principles this would improve the plaintiff's mobility
would
improve and her pain levels in the work environment would be
reduced.
iii.
The plaintiff is able to work as a teacher as she would have
done before the collision. However, she now needs to take rest
periods
during the course of the day though and if she works with
young children on the floor she would require a low bench to assist
with
dynamic postures like prolonged kneeling and squatting.
iv.
The occupational therapists believe that it would be best for
the plaintiff to work with grade 4 pupils and upwards, as this will
not entail using dynamic postures. They agree that with the
implementation of assistive devices she will be able to perform
sedentary
work despite the limitations until retirement age.
v.
The orthopaedic surgeons, Dr Oelofse, for the plaintiff and Dr
Kumbirai, for the defendant, both opine that there has been a loss
of
amenities of life by the claimant as a result of the injuries she has
sustained. As such her productivity has been affected
and she will be
an unfair competitor in the open labour market as well as only being
able to work in a sedentary employment environment.
vi.
Lastly, the neuropsychologist, Dr Grootboom concluded that the
plaintiff suffers from post-traumatic stress disorder (PTSD) and this
would impede in her functioning at work. Added factors such as pain,
irritability, anxiety related to the accident, low self-esteem
and
self-image and less physical activity are further contributors.
[6]
Incidentally Adv van Zyl does not take issue with the submissions
advanced in the preceding paragraph by Adv Du Plessis.
[7]
It was pointed out by Adv Du Plessis that the actuarial calculation
utilised a spread of 13% and this percentage was attained
from the
orthopaedic's conclusion that the plaintiff had suffered a 13% whole
body impairment as a result of the injuries sustained.
Both counsel
are in agreement that this is not the correct way to determine the
contingencies to be applied. However, Adv Du Plessis
is of the view
that the 13% spread is a viable figure taking into account his
submissions made above and as such advocated for
the court to apply
that particular spread in the plaintiff's case.
[8]
Adv van Zyl urged this court, to at the most, apply a spread of 10%
with him advocating that in the plaintiff's circumstance
a spread of
7% was to be applied. He argued that there was no change in the
plaintiff's ability to still attain what she could
have attained had
the accident not taken place. The actual loss arises on the
application of contingencies only.
[9]
For the plaintiff to succeed with her claim for loss of earning
capacity, it is trite law that the loss suffered must result
in a
diminution in her patrimony. See SANTAM VERSEKERINGSMAATSKAPPY BPK v
BYLEVELDT
1973 (2) SA 146
(A); DIPPENAAR v SHIELD INSURANCE CO LTD
1979 (2) SA 904
(A) and RUDMAN v ROAD ACCIDENT FUND
2003 (2) SA 234
(SCA) paragraph [8]:
"The
trial Judge dismissed the claims for past loss of earnings and loss
of earning capacity for the following reasons:
'On
the evidence before me I must conclude that the losses suffered as a
result of the temporary decline in the income generated
by the
professional hunting and professional outfitter operations due to the
incapacity of the plaintiff are losses suffered by
the company and do
not represent a diminution in the patrimony of the plaintiff. I may
pause to remark that the fact that the plaintiff
personally is
registered as the professional outfitter does not change the
situation. According to the evidence before me it must
be held that
he was employed by the company in order to conduct that section of
the business. The same holds true of the costs
of employing a
professional hunter to stand in for the plaintiff as well as the
employment of the repair and maintenance manager.
. . . These persons
are also employed by the company to take over functions performed by
the plaintiff and they are paid by the
company. Any loss which may
have occurred as a result thereof is a loss to the company and not to
the plaintiffs private estate.
It follows that in real terms the
plaintiffs private estate was not diminished due to his incapacity.
In
my judgment the plaintiff has failed to prove that his patrimony was
diminished due to any loss of earning capacity past or future
resulting from his injuries and consequently he has failed to prove
any entitlement to be compensated in respect of these heads
of
damages.'
In
other words, the learned Judge concludes that, although Rudman has
proved physical disabilities which, potentially at any rate,
could
give rise to a reduction in his earning capacity, he has not proved
that this has resulted in patrimonial loss.
He has not proved that
the reduction in earning capacity translates into loss in the
sense that his patrimony after the delict was less than it would have
been if the delict had not been committed."
[1O]
Turning to the issue of contingencies I take heed of what was stated
in
Southern Insurance Association v Bailey NO 1984(1) 98 AD
about
the two approaches that can be used to ascertain future loss of
earnings are discussed on
page
113
where
the following is said by
Nicholas JA:
"One
is for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely
a matter of guess
work, a blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations,
on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions,
and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to a greater
or lesser extent."
Continues
on page
114C-D
to state:
"In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that
the first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no
more than an
"informal guess" it has the advantage of a logical basis".
In addition refer to in
Smit NO v The Road Accident Fund, The
Quantum of Damages, Corbett and Honey, Volume 5,
84-251.
Robert
J
Kock
in his book
"The Quantum
Year book"
states that there are no fixed
rules as regards general contingencies and one of his helpful
guidelines is that of the sliding scale
contingency theory:
"Sliding
scale:
%
per
year
to
retirement
age,
i.e.
25%
for
a
child,
20% for
a
youth and 10% in middle
age".
[11]
Taking into account that the plaintiff has been found to be a
vulnerable employee, suffering a decrease in productivity and
would
be on an unequal footing as a competitor in the open labour market,
restricting her in her career as a teacher to teach grade
4 and above
and limiting her physical abilities as a teacher. It is my view that
though there is no career change or vocation change
that would come
about as a result of the collision, there does exist a change in her
circumstances that warrant the application
of contingencies.
[12]
The plaintiff has, in my view, managed to show that as a result of
her injuries and their sequelae her patrimony would be diminished
for
the reasons I have highlighted in the previous paragraph. It is clear
that she would be restricted in her capacity to earn
and this
translates into a diminution in her patrimony. The limitations
highlighted are to thus not trivial and as such general
spread of 5%
is clearly not applicable in these circumstances.
[13]
I agree with Adv van Zyl's argument that as a complete change in
capacity to earn or vocation is not the case, in this scenario
spread
of 15% will be too high. Neither is it comparable to make a finding
based on the plaintiff's whole body impairment as this
is not an
indicator of the plaintiff's compromised capacity to earn.
[14]
In the circumstances I am in agreement with Adv van Zyl that in these
circumstances a spread of 10% is applicable as it equates
to a
contingency which is not in the general bracket but one which caters
for the compromise that would be experienced by the plaintiff.
[15]
In conclusion Adv Du Plessis has provided me with the amounts due to
the plaintiff if a spread of 10% is applied. Thus the
contingency
deduction be applied to the calculation of actuary Johan Sauer is to
be 10%/20% which results in a 10% spread. This
then tallies to a
total loss of
R789
618.00.
[16]
In the result, the plaintiff, Sunet Kleyngeld, is to be paid an
amount of
R789 618.00
by the defendant, the Road Accident
Fund, in respect of her claim for future loss of earning capacity.
[17]
The order attached marked "X" is duly made an order of this
court.
_______________________
W.
Hughes
Judge
of the High Court
Appearances:
For
the Plaintiff:
........................
Adv JPJ Du Plessis
Instructed
by:
..........................
Van Zyl Le
Roux Inc
For
the Defendant:
.................
Adv J
van Zyl
Instructed
by:
..........................
T.M Chauke
Incorporated
Date
heard:
…...............................................................
5
September 2016
Date
delivered:
......................
9
September 2016