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[2015] ZAGPPHC 191
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Chetty v Road Accident Fund (39037/2013) [2015] ZAGPPHC 191 (18 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:39037/13
DATE: 18 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MITCHELLE
CHETTY
................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.........................................................................................
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] The plaintiff is
claiming for personal injuries sustained in the motor vehicle
collision. At the time of the collision she was
a passenger in the
insured motor vehicle. I am informed that the defendant has conceded
the merits. The defendant has also agreed
to pay the agreed damages
in respect of the following heads of damages:
General damages in
the amount of R250 000;
Past medical
expenses in the amount of R38 000;
In respect of future
medical expenses the defendant has agreed to provide the plaintiff
with an undertaking in terms of s 17 (4)
of the Road Accident Fund
Act.
[2] What remains in
issue which I have to determine, is the damages for loss of earnings,
that is, past and future loss of earnings
or damages for loss of
earning capacity.
[3] The plaintiffs
counsel handed in, by consent of the defendant, an actuarial report
as annexure “X". The defendant’s
counsel handed in,
by consent of the plaintiffs counsel, a copy of proof of the
plaintiffs monthly salary of R7 000 as annexure
“V”.
[4] There was no
evidence led. The parties’ counsel agreed that the matter
should be argued on the basis of the expert reports
filed of record.
The reports are uncontested and were provided by the plaintiff. The
defendant has provided no reports and relies
on those of the
plaintiff.
[5] The reports
filed of record are the following:
The report of the
orthopaedic surgeon.
The report of the
Occupational Therapist.
The report of the
Industrial Psychologist.
[6]
The injuries suffered by the plaintiff are common cause between the
parties. She sustained a compound fracture of the right
humerus.
The
fracture has healed in satisfactory alignment. The experts are agreed
about the
sequalae
of
the injuries in that she suffers from persisting pain in the right
upper limb and lower back; she is not able to manipulate heavy
objects with the right upper limb; she has persisting scars over the
right arm and recreational activities are compromised.
EMPLOYMENT
[7]
Prior to the accident, the plaintiffs work experience consisted of
semi-skilled to skilled sedentary work in the food and retail
industry. Her first job was in the family business as a shop manger
earning a monthly salary of R4 OOO. She left that employment
for a
better career opportunity. At the time of the accident she was
employed by The Hub as a casual worker for just over a year.
Her
duties included
inter
alia
filing
documents, general office administration, stock related tasks and
occasional cashier work. She earned a monthly salary of
R2 000.
According to the occupational therapist who assessed her after the
collision, this work format may be classified as work
of a light to
low range medium physical demand level.
[8] Her employer at
The Hub rated the plaintiff as an “excellent" worker who
was always ready and willing to take on
any work assigned to her.
Prior to the accident she was earmarked to become a permanent staff
member in the near future.
[9] Following the
accident, she convalesced from the injuries sustained for
approximately six months and was as such unable to work
during that
period. She resumed her pre-morbid employment in her casual worker
position at the same monthly salary of R2 OOO. She
was, however, made
an acting manager which was a more administrative position. She did
authorising as well as office administrative
work. According to the
plaintiff, when she returned back to work she had difficulty with
writing and typing and often had to complete
her work at home. She
was later, once fully recovered from her injuries, permanently
employed as an administration clerk. Because
of an incident that
happened at work, she resigned her position at The Hub and re-joined
her family business where she works as
a shop manager. She remains in
that capacity to date.
FUTURE LOSS OF
EARNINGS
The Report of the
Orthopaedic Surgeon
[10] The orthopaedic
surgeon in his narrative test states that the plaintiff has suffered
serious long term impairment and loss
of body function as a
consequence of the injuries sustained. And, she is no longer able to
manipulate heavy objects with the right
upper limb.
The Report of the
Occupational Therapist
[11] The findings of
the occupational therapist are that the plaintiff shows a slight
decline in muscle strength and range of motion
to her right arm,
although it remains functional. She currently meets all aspects of
wort? at a sedentary, light and lower range
medium physical demand
level. The plaintiffs current position is of a sedentary nature, but
the assessment showed that she has
some limitation in seated work and
is only able to maintain a seated position occasionally. The
occupational therapist’s
opinion is that although the plaintiff
is able to function in her current capacity, the injuries will
negatively affect her productivity
levels and could leave her
vulnerable if she has to enter the open labour market for any reason.
Though she is presently in a relaxed
environment where she can work
at her own pace, in the competitive job market she will struggle to
find and maintain employment.
Her physical limitations will need to
be addressed by therapy and adequate physical accommodations made to
allow her to produce
work of an adequate standard.
The Report of the
Industrial Psychologist
[12]
According to the opinion of the industrial psychologist, the
plaintiff was in the process of establishing a career for herself
in
the retail sector when the accident occurred. The industrial
psychologist’s conclusion is that because of the plaintiffs
positive feedback and age, 20 years at the time of the accident, she
would probably have been appointed to a permanent position
at The Hub
within the next few months, probably 1 April 2010. Her salary would
have by then increased to approximately R5 000
per
month.
But for the accident, she would have continued to gain skills and
experience in the retail and corporate sector over the
years and be
able to secure promotions and gradually increase her earnings as her
career developed. The industrial psychologist’s
contention is
that the plaintiff would probably not have considered working in the
family business as she has always wanted to
prove her independence
and make a career for herself. She would likely have remained working
in the retail sector, but being physically
able and fit she would
have been able to secure alternative positions outside this
environment if she so chose. In this way she
would have been able to
increase her earnings over the years (in a straight line) to peak at
the upper quartile of a Paterson C2
level of earnings and thereafter
receiving market related increases until retirement age. The current
(2014/15) salary scales for
this level is R24 927. This is the salary
which the plaintiff would have received but for the accident.
[13]
After convalescing for approximately six months, the plaintiff
returned to work in her pre-morbid capacity as a casual worker
for
The Hub. She received no remuneration whilst convalescing. On her
return she continued to earn the pre-morbid salary of R2
000
per
month.
Although she had been earmarked for permanent work, she however,
needed to be accommodated for her arm injury, and only appointed
permanently much later. She was thereafter permanently employed as an
administration clerk earning an approximate monthly salary
of R5 000.
Due to an incident that happened at work she resigned her position at
The Hub and re-joined her family business as a
shop manager and has
worked there to date. She currently earns a salary of R10 500
per
month.
According to the occupational psychologist this salary scale falls
just below the median for a store manager in the non-corporate
sector
which is RIO 625 per month.
[14] Based on the
medical prognoses by the orthopaedic surgeon and the occupational
therapist, the industrial psychologist opines
that the plaintiff will
in all probability have to remain working in a protected family
business environment for the duration of
her working career. Her
earnings are likely to remain relatively stable at the current level,
although overtime when her parents
are no longer active in the
business she should be able to secure a higher salary which may
increase to a position between the
median and upper quartile, that
is, approximately R16 770. This is the salary which the plaintiff
will receive because of the injuries
as she is no longer able to
pursue a career in the public retail business.
[15] The plaintiffs
case is that because of the injuries she sustained in the collision
she is now compromised - she is limited
in the work she must do and
should therefore be compensated.
[16] On the
contrary, the defendant’s contention is that the plaintiffs
position after the accident does not show prospects
of future loss of
income. The defendant contends according to the experts, the
plaintiff has healed satisfactorily and has returned
to her
pre-morbid status of functionality. The defendant’s counsel
argues that, even though the plaintiff has limitations,
the
occupational therapists’ opinion is that she is currently able
to meet all aspects of work at a sedentary, light and
lower range
medium physical demand level which is the work she was doing even
before the accident. This is evidenced by the fact
that The Hub
employed her permanently despite her limitations. Even in her
accommodated position, the employer saw no risk by employing
her in a
permanent position. Nothing is mentioned by the employer about any
functional limitation that the plaintiff experienced
but was
satisfied with her work. Sight should not be lost of the fact that
her departure from The Hub was not accident related
and that, in her
present employment, she now earns more than what she earned before.
Accordingly, she has no claim for potential
loss of future earnings,
so it is argued.
[17] I do not agree
with the defendant’s arguments.
[18] I am in
agreement with the opinion by the industrial psychologist that the
plaintiff was in the process of establishing a career
for herself in
the retail sector, when the collision intervened. Her manager at the
time was satisfied with her performance and
general attitude and
earmarked her for an appointment to a permanent position, when the
collision intervened.
[19] When she did
return to work, six months later, she was retained in a temporary
capacity for another eight months before she
was eventually appointed
in a permanent capacity with a significant salary increase. She would
in all probability have received
an earlier appointment were it not
for her injuries which took long to heal. This in my view, indicates
that she would pre-morbidly
have continued to build her career in the
retail industry and her earnings would probably have peaked.
[20] The fact that
she was eventually still permanently appointed despite her on-going
physical vulnerability and reduced capacity
bears testimony to her
positive attitude, motivation, skills and determination to make a
career. According to the information received
from her employer, the
plaintiff was an excellent worker who was always ready and willing to
take on any work assigned to her.
She left her family business where
she earned a salary of R4 000 and went to work at The Hub where she
earned a salary of R2 000.
This is indicative of a person who was
prepared to be independent and build her own career.
[21] It is so that
the plaintiff is currently able to meet all aspects of work at a
sedentary, light and lower range medium physical
demand level. Her
previous as well as her present work are of a sedentary nature.
However, the occupational therapist’s findings
are that
although the plaintiff is able to meet the job demand capacity, she
has residual deficits that will impact on her ability
to perform her
job. The residual pain in her arm and lower back was found to have a
negative impact on the quality of her work
performance. Her opinion,
which I accept, is that the accident has resulted in serious
long-term impairment that has and will continue
to impact on her
vocational and financial wellbeing.
[22] It is the
industrial psychologist’s opinion that the plaintiff will in
all probability have to remain working in a protected
family business
environment for the duration of her working career. She is presently
working in an accommodated position in her
family business. She works
in a leisurely environment and at her own pace. Her work involves
long periods of seated work and writing.
She has been found to have
some limitation in seated work and cannot sit for a long time because
of the pain in her lower back.
She has to constantly take breaks in
order to cope with the pain. She is no longer able to manipulate
heavy objects with the right
upper limb. This, in my view, is an
indication that she has limitations which make her not perform to her
optimum. I have to accept
the expert’s opinion that the
injuries will leave her vulnerable if she has to enter the open
labour market for any reason.
And, that in the competitive job market
she will struggle to find and maintain employment. It is for these
reasons that she will
no longer be able to pursue a career in the
public retail business, but will remain working in the family
business. In this sense
her salary prospects have been negatively
affected and she will no longer achieve her pre-morbid potential.
[23]
Even though at the moment it can be said that she is earning more
than she earned before, but the potential loss of income
is long
term. As
per
the
report of the actuary, the loss is calculated from the time of the
accident until she reaches the age of retirement. The salary
scales,
to which the industrial psychologist refers to, showed that there is
loss of income when the salary she would have earned
had the accident
not occurred as projected until her retirement age is compared with
the salary which she earns now that the accident
has occurred, which
is also projected until her retirement age; as such the plaintiff is
entitled to be compensated for this loss.
[24] I am mindful of
the fact that the plaintiffs resignation from her employment at The
Hub is not accident related. However, this
will be taken care by
contingency deductions.
[25]
A further contention by the defendant is that the incorrect salary
was used in the calculations. The defendant’s counsel,
with the
consent of the plaintiffs counsel handed in a copy of the salary
advice of the plaintiff which indicated that the plaintiff
earned a
salary of R7 OOO
per
month
and not R10 500 as used in the calculations. The plaintiffs counsel
conceded that the amount that should have been used is
the R7 000 and
that the actuarial calculations should be amended accordingly.
[26] The
calculations should be as follows:
Had the
accident not happened
Now that
the accident has happened
Difference:
Loss
Past earnings
Less
contingency deductions (5%/5%)
471
195
23
560
341
445
17
072
Total loss
of past earnings
447
195
324
373
123
262
Future
earnings
Less
contingency deductions (10%/30%)
5
778 717
577
872
2
374 810
712
443
Total loss
of future earnings
5
200 845
1
662 367
3
538 478
R
3 661 740
PAST LOSS OF
EARNINGS
[27] It is common
cause that the plaintiff spent some time from work convalescing. It
is also not in dispute that she was not paid
while she was off work.
The plaintiff is as a result claiming for this loss of income. The
period during which she was off work
is in issue between the parties.
The dispute is caused by the contradictory information contained in
the experts’ reports.
The orthopaedic surgeon in his report
refers to six weeks whilst the other two experts refer to six months.
I take it that the
orthopaedic surgeon must have made a mistake and
the amount should be calculated on the period of six months.
[28] The defendant’s
counsel submits that there is no documentary proof of the salary
which the plaintiff earned whilst employed
at The Hub, as such, the
plaintiff has not proven the loss. He offered payment of only two
months. This is not the case. The amounts
are confirmed in the
expert’s reports which the defendant has accepted. The experts
concede in their respective reports that
they were not provided with
documentary proof in respect of the salary but relied on the
information provided to them by the plaintiff
and confirmed by the
plaintiffs employer.
[29] The plaintiff
was earning a salary of R2 000 and the loss is R24 000.
[30] Consequently
the amount the plaintiff is entitled to for past and future loss of
earnings is R3 661740.
[31] In the premises
I make the following order:
a. The draft order
marked with an “X" and initialled is made an order of
court.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD ON THE: 02
March 2015
DATE OF JUDGMENT:
18 March 2015
PLAINTIFF'S
COUNSEL:ADVJ. KHAN
PLAINTIFF'S
ATTORNEY: BARBARA CHEIMAN ATTORNEYS
DEFENDANT'S
COUNSEL:Mr. E MOGANE
DEFENDANT'S
ATTORNEY:FOURIE FISMER INC.