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[2015] ZAGPPHC 263
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Spammer v Road Accident Fund (47122/2012) [2015] ZAGPPHC 263 (13 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
47122/2012
DATE: 13 MARCH
2015
NOT REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
JACOB
JOHANNES
SPAMMER
...............................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.......................................................................................................
Defendant
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
Plaintiff is a is 40 year old male Quantity Surveyor (QS). He was the
driver of his motor vehicle when it was involved in a
collission with
another one on 03 January 2010 along the N1 highway in the direction
of Polokwane.
He
instituted an action against the defendend to recover damages he
suffered as a result of the collision.
[2]
When the matter came before me, I was advised by counsel for the both
parties that merits were conceded and that the plaintiff
would be
entitled to recover 100% of his proven damages. Furthermore, I was
also advised that there was no claim for past medical
expenses and
that the defendant has tendered a certificate in terms of section
17(4)(a) of the Road Accident Fund Act with regard
to future medical
expenses.
[3]
The only issue for determination was future loss of earning capacity.
[4]
It is common cause that the defendant failed to respond to certain
pre-trial questions within the agreed time frames. In this
regard,
counsel for the plaintiff submitted that the contentions of the
plaintiff arising from the questions should be deemed to
be admitted
and that no evidence in respect thereof will have to be adduced by
the plaintiff.
The
minutes of the pre-trial conference held on 15 January 2015
.
[5]
In paragraph 3.1, the defendant was asked to confirm service of
expert notices and expert reports of amongst others, Dr. DA
Birrel
(Orthopaedic Surgeon), Dr. M Mazabow (Clinical Neuro-Psychologist),
addendum to Dr. Birrel’s report, Ms P Grove (Occupational
Therapist), Mr W Wessels (Industrial Psychologist) and acturial
calculations of Mr. G Whittaker.
The
defendant’s reply is indicated as “
noted and
confirmed”
.
[6]
In paragraph 3.2 the defendant was asked whether it admitted
“
that the factual allegations/findings, opinions and
basis/evidence in support of same as contained in the aforementioned
expert
notices of the Plaintiff filed in terms of Rule 36(9)(b) to
date’.
The
defendant’s reply is indicated as “
yes”.
[7]
In paragraph 5.4, the defendant was asked whether it
admits “
that the plaintiff has, as a result of his injuries,
suffered a loss of earning capacity?”
The
defendant’s reply is indicated as follows: “The defendant
undertakes to revert by close of business on Friday, 16
January 2015
at 16h30, failing which same will be deemed to be admitted and no
evidence in respect thereof will have to be adduced by the plaintiff”
[8]
The same reply as above is indicated to a few other questions such
as;
In
paragraph 5.5 where the defendannt was asked whether it
admits
“that the Plaintiff’s productivity has been negatively
affected by the sequelae of his injuries and that it will
in future
be negatively affected”;
and also in paragraph 5.6 where
the defendant was asked whether it admits that “
the
Plaintiff will suffer a loss of income in the future”.
[9]
It was also pointed out by counsel for the plaintiff that the
defendant did not revert or dispute “
the calculations and
method used to perform same as contained in the report of the actuary
filed on behalf of the Plaintiff”,
and as such, they should
be deemed as admitted.
[10]
In response to the failure to revert to questions in the pre-trial
minute and the consequences thereof, the defendant’s
counsel
confirmed that it failed to revert on the identified issues and that
he did not intend to dispute the assertions. He agreed
that the
dispute between the parties is on the correct contigencies to be
applied for future loss of earning capacity.
[11]
Whilst I agree that the defendant is bound by the answers (or lack
thereof) that it gave to the plaintiff as reflected in the
pre-trial
minute, I do not agree that the court can simply accept conclusions
that are not supported by facts or logical reasoning.
In my view, the
plaintiff still has to prove, based on the available evidence, that
he suffered a loss of earning capacity.
EVIDENCE
OF THE PLAINTIFF
[12]
The plaintiff testified under oath and confirmed that he was involved
in a motor collission as indicated above. He identified
the remains
of his motor vehicle in the trial bundle.
[13]
He described how his motor vehicle was hit from the back as he was
making a safe return to his lane after overtaking. His motor
vehicle
rolled about five times. He was taken to Wilgers Hospital. He felt
pain on his head and neck as he had hit his head on
the roof of the
motor vehicle. He also had bruises. He was treated and released the
same day. He went back to work two days later.
[14]
He went for a check-up at the hospital three days after the
collission. The doctor informed him that he had suffered a concussion
and that he should stay in bed.
[15]
When asked about the difficulties relating to the accident, the
plaintiff indicated that his neck was stiff, he was suffering
from a
headache and that few years after the accident he developed a
backache. He often gets up to walk after working behind a
computer
for some time.
[16]
On his emotional state, the plaintiff testified that he was diagnosed
with depression in 2009, before the accident as he was
going through
a divorce. He was on medication but had stopped. He had to take
medication again after the accident as he experienced
depression
again.
[17]
He confirmed that his wife has reported to the experts now that he
was prone to agression and road rage.
[18]
On his employment, the plaintiff testified that he is a Candidate QS.
He joined the company he is working for on 01 May 2010,
after the
accident. He has a B.Tech degree in Quantity Surveying that he
acquired at the University of Pretoria (now Tshwane University
of
Technology (TUT)) in 2000.
[19]
At the time of the accident he was employed by a company known as
VDDB as a QS but he was not registered with the professional
body of
Quantity Surveyors.
[20]
When asked what was outstanding for him to be a registered QS, the
plaintiff indicated that he still had to do a five-year
internship
with a registered company and write some examinations.
[21]
On how the accident- related difficulties affect his work, the
plaintiff testified that most of his work is done on a computer
and
part by scrutinizing plans (drawings). He often has to take breaks to
lie down due to pain. Working on a computer requires
a lot of
concentration. He also has to go out in the field (sites) more often,
although this is not much of a problem. He also
has to study to
complete the registration with the professional body. This is done
outside working hours.
[20]
He testified further that the first duration of his employment
history was with a company that was not registered with the
professional body of Quantity Surveyors.
He
made a decision in 2008 before the accident that he needed to
register as a professional QS. He registered as a candidate in
2013.
He is trying to study to register, but it is taking a little bit
longer.
[21]
He testified further that he has never received a warning or negative
evaluation on his work performance from his current employer.
However, he lamented about the fact that he is not getting where he
should be to qualify for an evaluation though. The evaluation
would
have an effect on whether he is promotable and it is a tool that
enables the employer to know what further training he requires.
[22]
In conclusion, he confirmed that he would continue to work in the
same company as a QS even if he does not make it to register
with the
professional body. However, he would not be able to do certain
things, such as sign a certficate of a QS. This has to
be co-signed
by his registered counterpart. He will also not be able to
register his own QS company.
[23]
Cross-examination
elicited the following ;
[24]
He conceded that the expert reports make no mention of the fact that
he sometimes take breaks to lie down to ease the pain.
His answer to
this was that he was probably not asked.
[25]
He was admitted at Denmar Psychiatric Hospital during 2009, before
the motor collission. This was after he attempted
suicide after
a fight with his girlfriend. His family took him there and he stayed
for two weeks. He was diagnosed with depression
which was treated. He
was also diagnosed with Attention Deficiency Disorder, Anxiety and
Obsessive Compulsive Disorder. He was
given a prescription of
Venor for the depression and Concerta for the other conditions. He
used the medication for six months
and then on a six-monthly cycle.
He then stopped and only used it when he needed to.
[26]
He visited the psychiatrist after the hospitalization incident. It
was explained to him that he needed to use the Concerta
for six
months.
[27]
The Concerta did not have a positive effect on him. He thinks he was
misdiagnosed because he never had the problems before.
[28]
When asked why he did not register as a candidate QS during
2008 when he first decided he wanted to be one, the plainiff
indicated that he first wanted to be certain if that was what he
really wanted to become. This is the reason why he applied for
a job
at a professional Quantity Surveying firm. The accident occurred in
2010 as he was about to register.
[29]
He studied for a Building Science Diploma from 1994 and obtained it
in 1996. Upgrading to a B.Tech is an extra
year. He registered
for this in 2000 and obtained the qualification in 2002. He took a
gap year in 2001. This was not due to difficulties
with
concentration, but rather the fact that he was already working and he
was concentrating on his career.
[30]
When asked to explain his Psychologist’s statement with regard
to his pre-morbid difficulties with concentration, the
plaintiff
indicated that he told the doctor that his parents took him to a
doctor for evaluation when he was still at primary school.
[31]
He only suffered from Attention Deficit Disorder after his divorce.
The suicide attempt was a way of seeking attention. He
only attended
four sessions with the psychiatrist after he was discharged from
hospital, thereafter he never went back but did
seek help from his
house (family) doctor as and when he needed it.
[32]
He was diagnosed with anxiety disorder before the accident , however,
the levels have increased since the accident. He
did not seek
help from a psychiatrist because he was not up to it and in any case,
it cannot be treated with medication.
[33]
He sought help from his house doctor. He did not feel like taking
time off work to attend to this. He learnt to live with it.
[34]
In his view, his failure or reluctance to follow up with his
psychiatrist or treatment does not worsen his situation.
There
is always a trigger for his disorders. In 2008 it was the divorce. In
2009 it was a fight and in 2010 it was the accident.
[35]
He denied that he was contradicting the medical reports that say that
there may be a benefit for him if he take his treatment.
In fact he
agrees that there would be a benefit, but his work situation does not
allow him to take time off for that.
[36]
He also agreed that not making followup consultations with his
psychiatrist is worsening his condition.
[37]
In principle, the plaintiff agrees with the Occupational Therapist
that his work is basically sedentary in nature , sitting
in front of
a computer and site visits and that although he does have certain
impediments, he can work until retirement.
[38]
He has not written any examination towards registration as a QS as he
must first register (enrol), then go through some academic
courses
that he will attend in the evenings. He also has to submit his
logbook to the registration council to approve his enrolment.
The
information he enters in the logbook relate to work he has been
doing.
[39]
He has no idea how difficult the examination will be but he works
with qualified QS and he knows what to expect.
[40]
Although he does not know the difference between the salary of a
registered and unregistered QS, he does know that it is quite
a
substantial leap.
[41]
When I asked him how he was doing with the internal courses in the
company , he indicated that there were no examinations.
[42]
When I asked him whether there has been any negative assessment on
his work,the plaintiff indicated that the results
are by
scoring performance, not written tests. Thereafter they get the
results by emails.
[43]
There was no re-examination. The pre-trial minute and the
expert reports were marked Exhibits 1 and 2 respectively.
EVIDENCE
OF THE DEFENDANT
[44]
No evidence was tendered on behalf of the defendant.
THE
INJURIES
[45]
The following expert reports were considered:
Dr.
Birrel (Orthopaedic Surgeon)
[46]
He examined the plaintiff on 15 October 2012 (almost three years
after the accident). His source of information other than
the
plaintiff was the MMF 1 forms signed by Dr. Saunders as well as notes
from the trauma unit of Wilgers Trauma Clinic. A diagnosis
of a soft
tissue injury was made. Xrays were also taken.
[47]
In his opinion, the plaintiff has no loss of life expectany and has
no scars as a result of the accident. He still has posterior
neck
pain at times and it is increased by sitting at a computer for a long
time.
[48]
On loss of amenities , hobbies and sport, Dr Birrel indicated that
this was “mild” and that he did not believe
that the back
pain was due to the accident. He opined that the plaintiff should
receive “
ergonomic advice from the occupational therapists
concerning his work station where he spend long hours at the
computer
” .
[49]
On “
present and future work capacity”,
Dr Birrel
indicated that “
The patient will not have to retire early as
a result of the accident under question. I estimate his loss of work
capacity as a
result of the accident to be in the order of 4% to 5%
but this can be improved, I believe, with conservative treatment by a
percentage
or so. The patient today was no longer complaining of any
right ear hearing problem. He is being treated for depression which
apparently
was the case prior to the accident”
[49.1] Under medical
expenses, Dr Birrel indicated that in his view, the plaintiff “
has
a 3% to 4% chance of requiring neck surgery as a result of the
accident, which would cost now around R150 000, requiring still
8
week’s sick leave”.
Dr
Birrel maintained this view after he had obtained xrays that he
commissioned during the assessment.
[50]
Dr Birrel concluded his report by noting that “
This patient
does not reach 30% Whole Person Impairment nor does he qualify as a
serious injury under the Narrative Test
”. He reiterated
this stance in the addendum after examining the xrays ordered on the
date of the medical examination.
[51]
A second examination was conducted on 31 March 2014 and he
reported his findings and opinion in an “
Addendum
Medico-legal Report”.
[52]
He recorded the plaintiff’s history since he last saw him and
specifically indicated that plaintiff had no surgery, he
experienced
abdominal pains around August 2013 , Xrays did not reveal any
pathology, he had headaches about two to three times
a week and that
they responded to analgesics. Futhermore, plaintiff had lower back
pain that increases in intensity as daily activities
increase .
[53]
He noted that during examination the plaintiff “
experiences
mild discomfort with rotation of the neck to the left. He has
mild left sided tenderness”.
[54]
Xrays indicated a normal cervical spine and narrowing of the L4/5
disc. This was attributed to degeneration.
[55]
He remained with his view that the patient does not qualify as a
serious injury under the narrative test. The “
cervical spine
is normal and there is no pressure on the nerve roots or the spinal
cord in the neck”
[56]
Dr Birrel is of the opinion that since the headaches respond well to
simple analgesics, the plaintiff “
would benefit from some
conservative therapy, such as from biokineticist, experienced
physiotherapist and/or occupational therapist,
for example, a
possible change in his work station may be indicated”
[57]
His opinion with regard to loss of present and future work capacity
remain the same as in the last report, namely, that it
“
is
in the order of 4% to 5%, noting , for example , that he does spend a
lot of time on the computer. This could be improved with
conservative
therapy….”
Dr
Menachem Mazabow (Registered clinical pychologist)
[58]
After performing some assessment tests on 03 December 2013, some of
the findings were formulated as follows:
[59]
The plaintiff sustained a mild concussion. There is no traumatic
brain injury.
[60]
The plaintiff does have “
a proness to intermittent lapses of
attention”
. This is attributed to his pre-existing
attention/concentartion difficulty in accordance with the diagnosis
made at Denmar clinic
before the collission.
[61]
On the reported worsening of concentration and his memory since the
accident, Dr Mazabow gave the following explanation:
“
Given
that the concussion sustained in the accident was mild, and thus
would not in itself be expected to give rise to a worsening
of the
premorbid distrurbances, this reported aggravation would instead be
attributed to the following: Mr Spammer reports that
he has
experienced back pain and headaches since the accident in question,
and back pain was noted to occur also during the course
of this
present test-session (after sitting for a long period). Those pain
symptoms would be expected to disrupt Mr Spammer’s
attention
/concentration, rendering him more distractable at times when the
pain symptoms are more salient”
[62]
On the reported “
worsening of his depression in the
immediate post-accident period” and “episosodes of
aggressive road rage” ,
Dr Mazabow found that the
“
depressive symptoms have apparently improved over the past
18 months, and they are presently within the mild range. However, the
episodes of road rage persist”.
[63]
Finally, Dr Mazabow noted that the plaintiff has not “
undergone
psychotherapeutic treatment in the post-accident period, although he
has continued to take the anti-depressant medication
and the
Concerta, and he is likely to benefit from a formal course of
psychotherapy, aimed at addressing the road rage episodes
(which, as
reported above, were not present prior to the accident), and aimed
also at assisting him to adjust to his residual intemittent
pain
symptoms (which, as noted above, appear to worsen his already
variable attention)”.
Petro
Grove (Occupational Therapist)
[64]
The assessment was done on 09 December 2014.
[65]
Based on the information adduced , the Occupational Therapist noted
that the plaintiff’s “
pre and post-accident job
demands are similar and fall into the sedentary category of work with
occassional light tasks I,e he usually
works on laptop in the office
but also needs to go on site visis to the mines, which depend on the
projects he is involved in at
a given stage”.
[66]
It also appears from the report that a colleague of the plaintiff was
interviewed and confirmed that the plaintiff had difficulty
sitting
for long and doing measurements. It was conceded though that it is
junior QS that do the meausrements and not the plaintiff.
[67]
The Occupational Therapist is of the opinion that the plaintiff
“
complies with the job demands of a Quantity Surveyor. He
should however, benefit from an Occupational Therapy work visit to
address
the ergonomics of his work station. He ought to take breaks
to prevent pain”
[68]
Under the heading “
recommendations”,
the Occupational Therapist indicated that “
Occupational
Therapy is indicated to educate Mr Spammer regarding neck/back
hygiene and ergonomic principles. He should be assisted
in obtainng
the recommended assistive devices and taught in the application
thereof. A work visit is indicated to address the ergonomics
of his
work staion. Further to this he requires education with regards to
stress/anxiety management strategies and life skills
(e.g. conflict
management skills). He also needs advice on constructive
leisure time use, taking his presenting physical
sequelae and
psychosocial functioning into account”.
Wessels
Wessels of Schoombee, Wessels & Associates ( Industrial
Psychologists)
[69]
A retirement age of 70 is recommended as a basis of quantifying loss
of earnings.
[70]
The opinion of the Orthopadedic Surgeon (4-5% loss of work
capacity) as well as the Clinical Psychologist’s opinion
that
the tests did not indicate a traumatic brain injury should be taken
into acount when assessing the loss of earnings claim.
[71]
The Industrial Psychologist concluded by stating that the work of a
QS requires productive performance in construction processes
and
that the physical and emotional difficulties that the plaintiff
experiences will have “
a direct influence on his productive
capacity and ability to work to optimal productive performance and
thus influencing his incentive
remuneration negatively”.
“
Disturbance
of his productive capacity will also prolong his ability to complete
the registration process to the status of Professional
Quantity
Surveyor and thus his ability to earn more”.
[72]
Based on the plaintiff’s pre-accident psychological
disposition, the Industrial Psychologist recommended that “
a
slightly higher post-accident contingency deduction be applied”.
Followup
interview: Dr Menachem Mazabow
[73]
The assessment was done on 12 January 2015. The plaintiff and his
wife reported on current challenges that the former faces,
such as
frequent headaches, back pain, road rage and concentration
difficulties.
[74]
Dr Menachen stood by his initial opinion and stated the following “
As
was recommended in the initial report, Mr Spammer requires continuing
anti-depressant treatment, together with psychotherapeutic
intervention (which he has not received as yet), in order to address
the worsened depression and ongoing “road rage”
and he
will likely benefit from a course of such treatment”.
Algorithm
Consulatnats & Actuaries
[75]
The Plaintiff’s pre-accident earnings were valued at R797,478
per annum at 01 February 2015, and thereafter inflation
increases
were made up to retirement age of 70.
[76]
The expert opinion of Wessel J. Wessels with regard to the productive
nature of Quantity Surveyors and the fact that pain and
concentaration defiencies may affect productivity was taken into
account. Higher contingencies were applied to off-set pre-existing
psychological dispositions.
[77]
On the basis for post-accident value of earnings, the actuaries
indicated that it is based on the “
same level of income as
for the pre-accident scenario until retirement at age 70. For
quantification purposes a higher post-accident
contingency is applied
as set out in paragraph 4.1. Explicit provision has been made for a
3.5% chance of being off work
for eight weeks in an assumed 10
years’ time for cervical surgery as envisaged by Othopaedic
Surgeon Dr D.A Birrel in his
report dated 31 March 2014”.
[78]
The results of the calculations were summarized under two scenarios.
The value of the income uninjured is R10 438 207 and injured
is R10
436 340.
[79]
A total net loss os R1 045 221.00 was obtained in Scenario 1 based on
a 15% and 25% pre-and post-accident contingency deductions
respectively. In scenario 2 a slightly higher contingency deduction
of 30% post-accident was applied and the results yielded a
net loss
of R1 567 038.
PLAINTIFF’S
CAREER PATH
[80]
This information was obtained from the reports of Petro Grove
(Occupational Therapists) and Wessel J Wessels (Industrial
Psychologist)
. In the former’s report the plaintiff is alleged
to have held various positions as a Candidate Quantity Surveyor
whereas
in the latter’s report he is referred to as a Quantity
Surveyor.
PERIOD
EMPLOYER & POSITION
SALARY
REASON FOR LEAVING
1995-1997
Vilkon Projects
--Student site foreman
unknown
-
1997-1999
Fabucon construction
-Construction site foreman
Unknown
unknown
1999-2000
Self-employed
--import export
Unknown
Not specified
2000-2002
Vilkon Projects
--Student Candidate Quantity Surveyor
Unknown
Career opportunity
2002-2004
Accolade Construction
---Candidate Quantity Surveyor
Unknown
Career opportunity
2004-2005
Caliber Management
--Candidate Quantity Surveyor
Unknown
Not specified
2005-2006
Gilda Projects
--Candidate Quantity Surveyor
--Director
unknown
Career opportunity
2006-2008
Jomar Services
--Candidate Quantity Surveyor
--Quantity Surveyor
Unknown
Career opportunity
2008-2010
Van Der Dussn Quantity Surveyors (VDDB)
Candidate Quantity Surveyor
--Quantity Surveyor
R36 500.00 per months (payslip dated 31/12/2008)
Voluntary retrenchment
( April 2010. 3 months after the accident in
question)
2010-present
Professional Cost Consultant
--Candidate Quantity Surveyor
--Quantity Surveyor
R61 267 ,57 per month plus 13th cheque and
variable project bonuses
(payslip dated 30/11/2014)
COUNSEL’S
ORAL SUBMISSIONS
[81]
The reservations expressed by the medical experts were correctly
raised by counsel for the defendant , Mr. Bahlmann during
argument.
He also argued that plaintiff had pre-existing conditions such
as depression, anxiety and attention deficiency
disorder and that
some of the issues plaintiff raised in court during his testimony
were not raised with the experts; for example,
that he often has to
take breaks to lie down to ease his pain. If this was so, it is
serious and he would have mentioned it.
[82]
Counsel for the defendant further argued that the fact that
plaintiff’s condition may improve with treatment means
that a high percentage contigency of say for example, 18 % ,
must be applied.
[83]
In her written heads of argument, counsel for the plaintiff , Ms Van
Antwerpen argued , amongst other things that the delayed
registration
as a QS will hamper the plaintiff’s career progression. She
also re-iterated Wessel J Wessels recommendations
with regard to
reasons why a slightly higher contingency deduction should be
applied, amongst which is Dr Birrel’s opinion
that the loss of
work capacity is between 4-5%, pre-existing psychological
dispositions as well as the productive nature of the
work of a QS.
[84]
With reference to the acturial calculations, she submitted that 15%
in scanario 2 is fair because the plaintiff is still young.
She
referred me to several authorities on the issue of appropriate
contingencies.
[
85]
On the issue of conservative treatment suggested by the various
experts, Ms Van Antwerpen argued that the treatment was
not
curative as it would not take away the back pain and headache.
Plaintiff
will have to take time off work and his productivity will be
affected. The defendant must take its victim as it found
him. The
pre-existing disorders do not make a difference. The 3% differential
suggested by defendant’s counsel does not take
matters any
further because the plaintiff has physical pain.
The
15% contigency is fair because it is based on plaintiff’s
current income,and is not a postulation of a registered QS income.
[86]
Both counsel referred me to various paragraphs in the well known case
of
Southern
Insurance Association LTD V Bailey NO
[1]
to
advance their respective stance on the issue of contingencies.
WHETHER
PLAINTIFF HAS SUFFERED A LOSS OF EARNING CAPACITY
[87]
In
the matter of
Prinsloo
v Road Accident Fund
[2]
,
Chetty J set out the general principles, with reference to old
authorities
[3]
as follows:
“
A
person’s all-round capacity to earn money consists, inter alia,
of an individual’s talents, skill, including his/her
present
position and plans for the future, and, of course, external factors
over which a person has no control, for instance,
in casu,
considerations of equity. A court has to construct and compare two
hypothetical models of the plaintiff’s earnings after the
date
of which he/she sustained the injury.
In casu
, the court must
calculate, on the one hand, the total present monetary value of all
that the plaintiff would have been capable
of bringing into her
patrimony had she not been injured, and, on the other, the total
present monetary value of all that the plaintiff
would be able to
bring into her patrimony whilst handicapped by her injury. When the
two hypothetical totals have been compared,
the shortfall in value
(if any) is the extent of the patrimonial loss. That loss is, as
adumbrated hereinbefore calculated by the
actuary on scenarios
postulated by Dr Holmes.
At
the same time the evidence may establish that an injury may in fact
have no appreciable effect on earning capacity, in which
event the
damage under this head would be nil…….”
[4]
[88]
I will now proceed to examine whether the plaintiff has lost any
earning capacity under two headings; whether the delays in
registering as a professional QS were (are) caused by the sequelae of
the accident and whether the physical injuries (neck and
back pain)
have any appreciable effect on his work capacity, and if so, whether
there is any diminishing effect on his patrimony.
Ad
delays in registering as a professional QS
[89]
Although much was made during the plaintiff’s oral evidence
about his diminished prospects of becoming a registered
QS,
there is simply no convincing evidence that he was in the process of
enrolling with the QS professional council (body) just
before
he was involved in the collission, neither is there any proof that he
is anywhere near enrolment or that the delay
thereof has anything to
do with the sequelae of the accident.
[90]
Plaintiff’s professional ambition leaves much to be desired.
This is in stark contrast to the plaintiffs in matters such
as for
example,
Griffiths
v Mutual & Federal Insurance Co Ltd
[5]
where
the plaintiff was shown to be a hard worker and highly motivated
attorney who most likely would have gone to the bar.
[91]
On his own version, the plaintiff decided during 2008 that he wanted
to register with the professional council as a candidate
QS. He does
not do so for almost two years until he is involved in the accident
and , in my view, conveniently say that he was
about to just before
the accident happened. When I asked him why it took him long to
register, his response was that he wanted
to make sure that it is
what he wanted to be.
[92]
In some interviews with the various experts he refers to himself as a
Candidate QS , however, it is common cause that he has
not submitted
the enrolment form (logbook). There is no evidence before me to show
how difficult completing that form is for the
court to appreciate
that the delay is caused by the sequelae of the accident.
The
only reference to the delay being attributed to the sequelae of the
accident is in the expert report of the Industrial Psychologist
where
Wessel J Wessels remarked that “
Disturbance
of his productive capacity will also prolong his ability to complete
the registration process to the status of Professional
Quantity
Surveyor and thus his ability to earn more”.
[93]
Plaintiff told Prof Fritz that he returned to work after about 4 or 5
days and he worked for the same company for a further
five months
after the accident. He was “
offered voluntary retrenchment
and he thought this would be a way of getting a sum of money and
being able to find a new job, which
he has succesfully managed to
do”.
He told Dr Mazabow that he left VDDB in
April 2010, some 3 months after the accident, because he feared being
retrenched.
Grove (Occupational Therapist) recorded that plaintiff
took retrenchment from the company he was working for before the
accident
in May 2010 and he has been working for his current employer
since May 2010.
[94]
All this (what he told the experts) contradicts the plaintiff’s
evidence
[6]
with regard to his
reasons for seeking employment at his current employer, a registered
QS company.
[95]
Counsel for the plaintiff submitted during argument that his claim
for loss of earning capacity and the calculations done by
the actuary
are actually not based on postulated income of a registered QS, but
his current position. I have noted that in fact,
the alleged delayed
registration as a QS is not one of the factors that the Industrial
Psychologist recommended to be taken into
account.
[96]
The plaintiff would not have succeeded to convince me that the delay
to register as a professional QS is caused by the sequelae
of the
accident.
Ad
difficulties at work as a result of orthopaedic injuries as well as
pychological difficulties
[97]
Save for the Industrial Psychologist, in the main, the expert reports
are qualified. They were all agreed that the orthopaedic
difficulties
would improve with conservative treatment and that the psychological
difficulties were not only pre-existing, but
that the worsened state
would also improve by treatment.
[98]
It is common cause that the plaintiff has not followed through with
his treatment for depression and other pre-existing psychological
challenges. In my view, his failure to heed medical
advice is indicative of the fact that these difficulties
do not
have a real effect on his work capacity or productivity,
alternatively, that they have been overstated.
[99]
There is no evidence from his current employer to support his claim
that the orthopaedic injuries are impacting negatively
on his work
production. It was noted by Dr. Birrel that plaintiff has not taken
leave off work . On his own version, the reason
he failed to make
follow-up with his psychiatrist is because he cannot take time off
work. There is no evidence to suggest that
his employer refuses to
release him.
[100]
The problem here is that both the Orthopaedic Surgeon and the
Clinical Psychologists downplayed not just the extent of the
physical
and psychological injuries, but its impact on his work .
[101]
In his favour, Dr Birrel , as I have already indicated above, is of
the opinion that there may be a 3 to 4% chance of plaintiff
requiring
neck surgery and 8 week’s leave of absence from work.
[102]
The question is whether this can or should be used as a basis for a
claim of loss of earning capacity. It is common cause
that the cost
of the surgery will be covered by the undertaking that the
defendant has tendered for future medical expenses.
[103]
The only remaining issue in this regard would be whether the
plaintiff will earn a salary during the 8 week period that Dr
Birrel
suggests he will take off work to undergo surgery.
There
is no evidence before me to suggest he will not. On his own version,
he will continue to work as a QS (as an employee
) , whether he
registers with the professional QS council or not.
[104]
According to the Industrial Psychologist, the nature of plaintiff’s
work requires productivity. The back pain
and headaches, as the
argument goes, may impact on his productivity, thereby reducing
his chances of promotion. This conclusion
does not take into account
the opinion of the other experts in this regard.
I
quote the recommendations of the Occupational Therapist again for
purposes of emphasis:
“
Occupational
Therapy is indicated to educate Mr Spammer regarding neck/back
hygiene and ergonomic principles. He should be assisted
in obtainng
the recommended assistive devices and taught in the application
thereof. A work visit is indicated to address the ergonomics
of his
work staion. Further to this he requires education with regards to
stress/anxiety management strategies and life skills
(e.g. conflict
management skills). He also needs advice on constructive
leisure time use, taking his presenting physical
sequelae and
psychosocial functioning into account”.
[105]
As I have already indicated, it is common cause that there has never
been any negative evaluation / assessment against the
plaintiff. He
has been with the current employer since 2010, just a few
months after the accident.
[106]
I would have expected evidence from his employer that would at the
end of the day justify a conclusion that the plaintiff’s
career
prospects have been compromised by the sequelae of the accident. All
that the plaintiff could say during cross examination
was that he is
not getting where he needs to be to be evaluated because of his
orthopaedic injuries and pschological challenges
. I do not know
where he needs to be to qualify for evaluation and what this
evaluation entails and why the employer does not evaluate
him.
[107]
The 4% - 5% loss of work capacity that Dr Birrel was prepared to
concede in his favour has not been shown to translate into
a
lessening of the plaintiff’s patrimony because there is no
evidence to suggest that what he would earn post-morbid has
been
compromised. Plaintiff remains on the same position as a QS
and there is no evidence to demonstrate that his anxiety
about career
progression has anything to do with the accident.
[108]
Accordingly, the plaintiff’s claim for loss of earning capacity
fails.
ORDER
[109]
I will amend the draft order that was handed in at the conclusion of
the oral submissions by deleting paragraph 1 and renumbering
the
remaining paragraphs in chronological sequence.
[110]
The order that i make is in terms of the draft that I have
marked “XY” as amended by me.
TAN
Makhubele
Acting
Judge of the High Court
Date
heard: 30 January 2015
Appearances:
Plaintiff:
Advocate M Van Antwerpen
Instructed
by: Adams & Adams
Defendant:
Advocate B. Bahlmann
Instructed
by:
[1]
1984(1)
SA 98
[2]
2009(5)
SA 406 (SE)
[3]
Santam
Versekeringsmaatskappy Bpk v Byleveldt 1973(2) SA 146 (A) at 150 B-D
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
(A) at 917 B-D
[4]
At
p
[5]
1994(1)
SA 535 (A)
[6]
Plaintiff
testified that he made a decision during 2008 that he wanted to
become a registered QS. According to him, he left the
company he was
working for and joined a registered QS company , his present
employer , for this reason.