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[2015] ZAFSHC 19
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C.C.P v Road Accident Fund (850/2008) [2015] ZAFSHC 19 (5 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION BLOEMFONTEIN
Case
no: 850/2008
In
the matter between:
C[…]
C[…] P[…]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY
:
RAMPAI, AJP
HEARD
ON:
13 AUGUST 2014
DELIVERED
ON:
5 FEBRUARY 2015
[1]
These were action proceedings. Since the defendant had already
conceded the substantive merits
of the plaintiff’s case, I was
required to adjudicate the dispute concerning only the
quatum
of her claim.
[2]
I deem it necessary to give a historical backdrop of the matter.
The plaintiff was involved
in road accident which took place in
Bloemfontein on the 4 April 2003, some 11 years and 4 months before I
heard the matter.
The accident was in President Paul Kruger
Avenue. The precise scene of the accident was at a traffic
intersection formed
by Fouché Street and the said avenue,
which is one of the main traffic arteries in the city. At the
time of the accident
Mrs CC P[...] was the driver of a motor car with
registration number NXL[…] and a certain Mr F A Greyling the
rider of a
motor bike with registration number BTS[…].
[3]
As a result of the collision, the plaintiff sustained certain bodily
injuries, among others, fractured
skull and a whiplash. On the
19
February 2008 she initiated these action proceedings
against the Road Accident Fund as the statutory insurer of the rider
of the
motor bike. She claimed R570 000,00 compensation
under three heads, namely:
·
Past medical expenses
R 20 000,00
·
Future medical expenses
R300 000,00
·
General damages
R250 000,00
See paragraph 7 of the
Particulars of Claim.
[4]
The matter was then enrolled for hearing. It was subsequently
assigned to Hancke, J who
by agreement between the parties, made the
following order in favour of the plaintiff on the 15 November 2011:
“
1.
The
quantum
and merits are hereby separated.
2.
Defendant to pay the Plaintiff 75% of Plaintiff’s damages to be
proved.
3.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs, which
shall include the reservation fees of
Plaintiff’s expert witnesses on
quantum
, on the High
Court scale to date of this order.
4.
In the event that the costs are not agreed upon, Plaintiff shall
serve a Notice of Taxation
on Defendant’s attorneys of record
and shall allow the Defendant seven (7) Court days thereafter to make
payment of the taxed
costs.”
[5]
The plaintiff filed a notice of his attention to amend the original
particulars of the claim.
The notice was filed on the 28 May
2013. The amendment concerned only two of the various
components of the compensation claimed
in paragraph 7. She
claimed the following:
“
7.1
Past medical expenses
R 20 000,00
7.2
Future medical expenses
R 300 000,00
7.3
General damages
R 250 000,00
7.4
Future and past loss of earnings
R5 470 135,00”
The total sum of her
claim was estimated to be R6 040 135,00. Prayer 1 was
accordingly amended. Her original
claim of R570 000,00
escalated to R6 040 135,00. The introduction of loss
of earnings as a new component of
the compensation was the sole
reason for the amendment.
[6]
The first component of the action, the merits, was then out of the
way. The action was enrolled
again to have the second component
of the action, the
quantum
, adjudicated. On that second
occasion the action was assigned to Ebrahim J, who, by agreement
between the parties made the
following order on 11 June 2013:
“
1.
The hearing of the matter with regards to the
quantum
of the future and past loss of earnings and past medical expenses are
postponed
sine
die
;
2.
Defendant pays plaintiff an amount of
R187 500 (ONE HUNDRED
AND EIGHTY SEVEN THOUSAND FIVE HUNDRED RANDS AND ZERO CENTS)
in
respect of general damages before or on
31 July 2013
.
The amounts to be paid directly into the account of the plaintiff’s
attorneys, the particulars thereof are as follows:
Name
of account holder
B.L.
KRETSMANN ATTORNEYS
Name
of bank
NEDBANK
Name
of branch
WELKOM
Account
number
[…]
Branch
code
116 635
Reference
[…]
3.
The defendant to furnish to the plaintiff an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, limited to
75%, of the costs of the future accommodation of plaintiff (born
1[…]
M[…] 1975
) in a hospital or nursing home or the treatment
or the rendering of a service or the supplying of goods to plaintiff
arising out
of injuries sustained by her in the motor vehicle
collision of 4 April 2003, in terms of which undertaking the
defendant will be
obliged to compensate plaintiff in respect of the
said costs after the costs have been incurred by plaintiff or any
party on behalf
of her and on proof thereof.
4.
Defendant is liable for payment of the plaintiff’s taxed or
agreed party and party
costs, which will include the following:
4.1
The reasonable preparation/qualifying and reservation fees and
expenses (if any) of:
4.1.1 S van
Jaarsveld (Industrial Psychologist);
4.1.2 TW
Doubell (Actuary);
4.1.3 Dr. P
Repko (Neurosurgeon);
4.1.4 Dr. L
Stevens (Clinical Psychologist);
4.1.5 M Human
(Speech Therapist);
4.1.6 Dr. De
Wet (Orthopedic Surgeon) and
4.1.7 M
Ackerman (Neuro psychologist).
4.2
The costs attendant upon obtaining the payment of the amounts
referred to in this order.
4.3
The plaintiff shall serve the notice taxation on the defendant’s
attorney of record, and
4.4
The plaintiff shall allow the defendant 7 (seven) court days to make
payment of the taxed costs.”
I shall revert to the
order later.
[7]
On the 25 February 2014 the parties held a conference in terms of
Rule 37(7)
in pursuit of the outstanding issues relative to the
second component of the action,
viz quantum
. Those
issues were identified by the parties as follows:
“…
future
and past loss of earnings and the past medical expenses.”
See paragraph [5]
Rule 37
minutes – p26 record.
[8]
On the 12 August 2014 the parties held a further conference in terms
of
Rule 37(7).
The parties repeated that the only issues of
quantum
still outstanding concerned past medical expenses,
past loss of earnings and future loss of earnings – vide
paragraph [2].
Further
Rule 37
Minutes – p2, Bundle 2.
[9]
On the 13 August 2014 the matter was before me. The version of
the plaintiff as regards
quantum
was presented to me by two
witnesses, namely: Ms CC P[...], the plaintiff herself, and Mr
T W Doubell an actuary.
[10]
As regards past medical expenses, the plaintiff relied on some 56
invoices by various doctors, pharmacists,
physiotherapists and other
providers of health care services. It appeared that the
expenses were incurred between 9 February
2010 and 9 August 2011.
The total of such expenses was alleged to be R44 153,14
according to the plaintiff’s schedule
and supporting vouchers
filed in terms of
Rule 36(4)
to supplement her claim. The
schedule was handed up and marked Bundle 1.
[11]
Save for an amount of R6 000,00 which the plaintiff made in
favour of Dr P Repko on the 8 August 2011,
the rest of the past
medical expenses were not seriously challenged. The said doctor
was not paid for medical treatment he
gave to the plaintiff. He
was rather paid for consultation and compilation of a medico-legal
assessment report. Therefore,
the amount formed no part of the
plaintiff’s past medical expenses. Accordingly it was not
claimable from the defendant
under such a component of compensation.
I would, therefore, allow the plaintiff’s claim for past
medical expenses in
the sum of R38 153.
[12]
As regards past loss of earnings, the plaintiff claimed R1 134 423,00
from the defendant.
See 5 actuarial assessment reports –
p6, Bundle 2. The calculation was done on 11 June 2013.
Her estimated past
loss of earnings then increased by R362 389,00
to R1 496 812,00.
[13]
The second issue is the extent to which the defendant is obliged to
compensate the plaintiff in respect of
past loss of earnings.
[14]
On behalf of the plaintiff it was contended that the plaintiff’s
patrimony was diminished by the sum
of R1 496 812,00 as a
result of her past unemployability. Mr Roux, on behalf of the
plaintiff, submitted that the
plaintiff would have earned such income
but for the impact of the motor vehicle accident. Counsel
submitted that her incapacity
to earn such income was caused by the
disabling injuries she sustained in the road accident.
Accordingly counsel urged me
to make an award in the aforesaid amount
in order to make good her past patrimonial loss.
[15]
On behalf of the defendant it was contended that the plaintiff’s
patrimony was not so substantially
diminished as the plaintiff
contended it was. Mr Moeti, counsel for the defendant, argued
that there was no cogent evidence
which indicated that the injuries
sustained by the plaintiff in the road accident were so severe that
they rendered the plaintiff
totally unemployable.
[16]
The plaintiff was born on the 10 March 1975. She was injured in
the road accident which occurred in
Bloemfontein on Saturday, 4 April
2003. She was 28 years of age at the time. She lost
consciousness for a brief spell
of time but regained it while she was
still on the scene of the accident. She did not immediately
consult a doctor.
She returned to Johannesburg the next day
where she worked for a business enterprise called iSolve Business
Solutions (Pty) Ltd.
Her designation was business development
manager. Her gross salary was R18 222,40 per month.
[17]
She began to experience severe episodes of headache. She
consulted a physician who referred her to
Tembisa Hospital where she
was admitted three days after the accident. She was medically
treated as an in-patient.
Her treating doctor was Dr R Engels.
She was examined in connection with minor head injury and neck
injury. The doctor
described the injuries as whiplash injury of
the neck with headache. She was hospitalised for two weeks.
She was then
discharged. – vide p34:11, Bundle 2. The
statutory medical report was completed on 30 October 2003.
[18]
Her house doctor, Dr Engels referred her to a physician, Dr Roodt
because she continued to suffer neck pains
and headaches. The
physician stabilised her neck by means of a neck traction.
However, pains relative to her neck injury
and head injury
persisted. She was then referred to the Mediclinic in Sandton
where she was hospitalised. From the
record I could not
established for how long she stayed in hospital. Dr Maxwell
subjected her to further neck traction.
She was also supplied
with a neck collar.
[19]
Notwithstanding her health conditions, the plaintiff resumed her work
at iSolve Business Solutions (Pty)
Ltd on or about 18 April 2003.
She remained in the employ of that enterprise for approximately 4½
years after her
injury on 4 April 2003. During that period she
continued to work as a business development manager. She was
permanently
appointed in that position before the accident. Her
position and salary were not adversely affected.
Between
the date of her accident and the date of her recuperation her
employer fully remunerated her. Therefore, she suffered no loss
of earnings during the entire period of her recuperation. On 30
September 2007 she resigned.
[20]
It would appear that she remarried during September 2007 before her
resignation. Her husband, B[…],
lived on the farm
Goedverwacht, district Bultfontein, Province Free State. Her
resignation was therefore prompted by her
marriage and not her
occupational disability caused by the road accident.
“
Mrs P[...]
indicated that she resigned at the end of September 2007 as she got
married and moved to Bultfontein.”
Ms S van Jaarsveld,
industrial psychologist p11:6.10, see page 21, Bundle 2.
[21]
I am of the view that her move from Johannesburg to Bultfontein was
informed by matters of the heart and
not her impaired ability to
perform her work satisfactory. It is more probable than not
that but for the marriage she would
not have resigned. If her
husband lived in Johannesburg at the time of her marriage, the
indications are that she would probably
not have resigned.
[22]
From 1 October 2007 until the 31 January 2008 the plaintiff was not
gainfully employed. She lived on
a farm with her husband.
During those 4 months she earned no income whatsoever. She lost
a gross sum of R72 889,60.
She could have earned such
income as a business development manager at iSolve Business Solutions
(Pty) Ltd had she not freely resigned.
It follows, therefore,
that the defendant was not liable for such past loss of earnings.
[23]
On 1 February 2008 her previous employer, iSolve Business Solutions
(Pty) Ltd re-employed. She was
engaged on the basis of a fixed
term contract of employment. She was contracted as a project
co-ordinator at Sasolburg.
She worked from home. She
could substantiate her allegation that she earned R15 000,00 per
month. The project
she co-ordinated was completed on 18
February 2010 when the business relationship between Sasol (Pty) Ltd
and iSolve Business Solutions
(Pty) Ltd came to an end. During
that period of two years the plaintiff earned R360 000,00
gross. Again it will
be readily appreciated that that contract
of employment was terminated through effluxion of time and not
disability to properly
co-ordinate the project.
[24]
Since 1 March 2010 until the 14 August 2014 the plaintiff has been
unemployed. However, she has been
assisting her husband with
farming operations.
See S van Jaarsveld,
p7:5.1.3.3 – page 17 Bundle 2. The monetary value of her
performance of farming operations has
not been quantified. She
became jobless since the 1 March 2010 because her fixed term contract
of employment expired.
The contract between her employer,
iSolve Business Solutions (Pty) Ltd and Sasol (Pty) Ltd came to its
natural end. The project
for which she was appointed was
accomplished. It follows therefore that she was not dismissed
on medical grounds relative
to the accident we are here dealing
with. There was no evidence that her previous employer was
dissatisfied with her productivity
level. It is probable that
she would have continued working as a project co-ordinator had the
contract period of the project
endured beyond 28 February 2010.
Since then the plaintiff has made no serious effort to find another
job because her subjective
opinion was that she could not return to
her previous work given her present condition.
[25]
It has to be accepted that the plaintiff volunteered to work again
after a break of 4 months. She was
willing and able to
co-ordinate her employer’s project for two consecutive years.
She was then laid off on the grounds
of her employer’s
operational requirements and not her impaired capacity to do her
work. The plaintiff consulted Ms
S van Jaarsveld on 29 May
2012. The industrial psychologist commented as follows on the
plaintiff’s current unemployment
on p7:5:
“
5.1.3.3
At the end of February 2010 Mrs P[...]’s contact was not
extended
as the project she was involved in was finalised. From
March 2010 until present Mrs P[...] is unemployed and assists her
husband with the farming activities.”
[26]
From the statement one gains the impression that the plaintiff would
have wanted to have her contract of
employment extended. In a
way she lamented the completion of the project she had co-ordinated
for two years. All these
tendered to suggest that she was still
willing and able to carry on earning a livelihood as a project
co-ordinator if her contract
could have been extended from 1 March
2010. Her joblessness from that date on was, as I have already
indicated, occasioned
by the end of the project. It was not
attributable to her injuries.
[27]
In the circumstances, I have serious reservations as regards her
claim for past loss of earnings. Since
the foundation of her
claim in this regard was questionable, the calculation thereof of her
alleged loss was unreliable.
There were factors which should
have been taken into account but were not. I found the
actuarial assessment report by Mr
Doubell unhelpful. Certain
assumptions on which the report was based were factually incorrect.
[28]
This then completes the second issue concerning past loss of
earnings.
[29]
As regards future loss of earnings, the plaintiff claimed
R5 738 112,00 from the defendant.
The actuary, Mr
Doubell, calculated the plaintiff’s future loss of earnings on
the strength of the industrial psychologist’s
assessment
report. According to Ms Van Jaarsveld the plaintiff will remain
unemployed for the rest of her life.
[30]
Mr Roux, argued in support of the aforesaid finding that the accident
had rendered the plaintiff permanently
unemployable. Counsel
submitted that a case has been made out that the plaintiff would
suffer loss of earnings in the future.
Accordingly counsel
urged me to uphold her claim as quantified by the actuary.
[31]
Mr Moeti, argued against the finding that the injury which the
plaintiff sustained in the accident totally
impaired her capacity to
earn any income whatsoever in the future. He submitted that the
plaintiff had failed to make out
a case that she had been totally
incapacitated to gainfully participate in the open labour market
again for the rest of her life.
Accordingly counsel urged me to
award the plaintiff compensation commensurate to the extent of her
partially diminished patrimony
in the future.
[32]
There were nine assessment reports which were handed up by agreement
between the parties. Eight of
them were bound together in a
single document marked Bundle 2. I chose to list them here in
accordance with their historical
sequence:
30 July 2007 Ms P du
Plessis, physiotherapist – see p81, Bundle 2;
8 August 2011
Dr P Repko, neurosurgeon - see p27, Bundle 2;
19 August 2011
Ms Marietha Ackerman, counselling psychologist – see p77,
Bundle 2;
8 November 2011
Dr J Earle, neurosurgeion – see p44, Bundle 2;
23 May 2012 Ms Marleen
Human, audiologist – see p86, Bundle 2;
29 May 2012 Ms S van
Jaarsveld, industrial psychologist – see p9, Bundle 2;
16 October 2012
Mr E Joubert, clinical phsychologist – see p57, Bundle 2;
11 June 2013
Mr T W Doubell, actuary – see p2, Bundle 2;
13 August 2014
Mr T W Doubell, actuary – see exhibit a.
[33]
All those experts, with the exception of two, were appointed by the
plaintiff. The two exceptions who
were appointed by the
defendant were Dr J Earle, the neurosurgeon and Mr E Joubert, the
clinical psychologist. I shall revert
to the experts opinion
later.
[34]
The plaintiff injured in Bloemfontein on Saterday the 4 April 2003.
She took a wrong turn across the
traffic lane on which a motor bike
was travelling. The bike crashed into the right front door of
her motor car. The
force of the impact flung rider off the bike
and propelled him forward. He landed into the car through the
driver’s
window. He knocked the right side of her head
with a helmet. She briefly lost consciousness. However,
she regained
it on the scene of the accident shortly afterwards. She
was confused for a while. She discovered that the rider was
lying on her lap; that she was bleeding from the right ear; that she
was bleeding from the nose as well; that her neck was stiff
and
painful and that the rider’s bike was under her car.
[35]
From the scene she drove to the police station, to the rider’s
home and finally to her host’s
residence. The next day
she drove back to Johannesburg. Two days after the accident she
was referred to Tembisa Hospital
where she was admitted. She
had severe headache and stiff neck. A brain scan was done.
The apparent bleeding
on the brain was detected as was the swelling
thereof. Her neck was put in traction. She stayed in
hospital under treatment
for a period of two weeks.
[36]
She testified and complained about:
·
severe headaches;
·
stiff neck spasm;
·
memory problem; and
·
imbalance of movement.
[37]
As regards the complaint of headaches, Ms Petro du Plessis, remarked
that the plaintiff’s complaint
was a symptom of:
“
Erge temporale
hoofpyn, sewe dae ‘n week en agt tot tien op ‘n skaal van
nul tot tien.”
She expressed her opinion
as a physiotherapist as follows:
“
Hierdie is ‘n
massiewe besering.”
[38]
Dr Pieter Repko investigated the plaintiff’s complained of
headaches. He attributed the cause
thereof to the head injury
which stemmed from a blunt injury in the parietal area on the right
side which was associated by loss
of consciousness. He was of
the opinion that the plaintiff’s complaint about temporal and
frontal headaches was genuine
and that it was a
sequilae
of
the head injuries she sustained in the road accident.
[39]
Ms Marietha Ackerman also heard about the plaintiff’s complaint
about headaches. The counselling
psychologist subjected her to
a wide range of psychological test. The plaintiff fared
dismally. Ms Ackerman found that
the scores were not just below
average but that they were in the lower range of average scores to
her age norm group. She
expressed the opinion that the
plaintiff experienced a variety of significant difficulties and that
the difficulties she complained
about could not exclusively be
attributed to brain injury consisting of cerebral oedema (swelling of
the brain) and possible haemorrhage
contusion (bleeding on the
brain):
“
However, these
difficulties could also be associated with the presence of
depression.”
[40]
Dr Jaap Earl also investigated the plaintiff’s complaint about
persistent headaches. As a neaurosurgeon
his examination
focused on the brain in an endeavour to ascertain the cause of the
plaintiff’s complaint. He was placed
in possession of Dr
P Repko’s neurosurgical assessment report. He regretted
two omissions. He was not furnished
with the statutory medical
report, Form MMF.1 and the original scan of the CT Brain Scanning
Procedure. As a result he had
the patient’s brain
examined. He caused the brain to be tested at his clinic by way
of EEG (electro-effino gram) test.
Although the outcome was not
absolutely conclusive, to a large extent, the test excluded the
presence of serious brain damage or
the danger of post traumatic
epilepsy.
[41]
The opinion of the neurosurgeon therefore was that the condition of
her brain was normal. The doctor
found that the plaintiff’s
severe headaches were not a manifestation of an underlying brain
damage. His opinion fortified
that of Dr Repko that a CT brain
scan done on 28 September 2004 was reported on as normal. He
intimated a probable cause(s).
The finding negated that of Ms P
du Plessis who described the plaintiff’s head injury as
“massiewe hoofbesering.”
[42]
Ms M Human did not deal with the plaintiff’s complaint
concerning severe headaches. Perhaps the
matter did not fall
within the domain of her expertise. She is an audiologist by
profession. The plaintiff complained
about constant headaches
to Mr E Joubert. She told the clinical psychologist that she
suffers from chronic pain; that the
chronic pain impaired her
sleeping pattern; that her workspeed had slowed down; that she
quickly gets irritated; that she gets
depressed and despondent with
herself; that she considered killing herself post-accident and that
she does not dream about the
accident. I understand the last to
mean that she does not have nightmares associated with the accident.
[43]
The clinical psychologist administered a number of psychometric
tests. The plaintiff’s overall
performance on the
different cognitive domains was pathetically poor. The clinical
psychologist gained the general impression
that her performance
constituted an effort which was in accordance with her potential.
The psychometric test results were
summaraised on p12 of the
assessment report. They fluctuated between average and poor.
She attained virtually nothing
above average. Ms P[...]’s
neuropsychological profile was graphically reflected on p13 of the
report.
[44]
Mr Joubert found that the neurosurgical profile Ms P[...] presented
with was not in keeping with her suggested
academic profile and her
occupational profile. It must be borne in mind that her
academic credentials were never verified.
Therefore, her
psychometric test results were never assessed against any proven
academic background. The finding of the clinical
psychologist
was that Ms P[...]’s neuropsychological problems can be
associated with a significant head injury. The
lady’s
poor psychometric test results might as well have been a true
indication of her normal and unimpaired natural intellect.
Mr
Joubert’s finding in connection with the “significant
head injury correspondent with that of Dr Repko”.
He
referred to Dr Repko’s conclusion at paragraph 9 on p13 of his
report. However, he was not aware of Dr Earl’s
contrary
conclusion. Apparently, he was not finished with a copy of such
assessment report dated the 8 November 2011.
See paragraph 3
for the list of the documentation he received. He assessed the
plaintiff on the 2 February 2012. Mr
Joubert noted on p16 of
his psychoforensic assessment report that Ms P[...]’s emotional
status was a matter of concern to
him even though she did not appear
to be clinically depressed during the assessment. He then
commented that the relationship
between depression and pain is
well-documented. Therefore the headache complained of or the
chronic pain might well be manifestation
of the plaintiff’s
depression. It might also be a combination of such depression
and head injury.
[45]
Ms S van Jaarsveld assessed the impact of the road accident on the
plaintiff’s present and future prospects
of employment with
emphasis on the type of work she is currently able to perform.
[46]
Among others the industrial psychologist noted that the plaintiff
complained that she experiences severe
headaches on daily basis.
I have already discussed the plaintiff’s occupational history
immediately before the accident,
at the time of the accident and
after the accident.
[47]
At paragraph 6.8 of her assessment report, the industrial
psychologist commented as follows on the plaintiff’s
claim for
future loss of earnings:
“
6.8
With regard to Mrs P[...]’s pre-accident income potential one
can assume that, had the accident not
taken place, she would have
continued with her work as a Business Development Manager or in a
similar position up until the retirement
age of 65 with earnings
equivalent to her earnings at the time of the accident and with
annual salary adjustments in line with
annual inflation rates.
According to the different salary surveys a Business Development
Manager/Project Coordinator can
be linked to Paterson level C4.
Remuneration connected with specific levels of the Paterson scale can
be specified as follows;
Paterson
Basic Salary Scale
Total Package
Lower
Quartile
Median
Upper
Quartile
Lower
Quartile
Median
Upper
Quartile
C4
R230 000
R273 000
R325 000
R346 000
R389 000
R466 000
[48]
The statement was flawed because, as I have earlier indicated, the
plaintiff resigned from iSolve Business
Solution (Pty) Ltd on account
of her marriage in September 2007 and not the accident in April
2003. Four months later, the
same employer rehired her as
project co-ordinator. Her re-employment in a sense tended to
confirm or to demonstrate that
her alleged impairment never
disadvantage her, at least in the eyes of her employer. If her
original contract of employment
was terminated on the grounds of
occupational impairment, as it was contended, then it was unlikely
that the employer would again
have taken her back. She worked
for two more years. On the 28 February 2010 her fixed term
contract expired.
Once again her disability had nothing to do
with her subsequent joblessness. Since the accident she was
able to work for
over 6½ years notwithstanding her physical
and psychological impairment.
[49]
She answered during cross-examination by Mr Moeti that she at one
stage received an offer of employment in
Johannesburg after the
expiry of her fixed term contract as a project co-ordinator.
However, she declined the offer.
She also conceded that there
was greater demand for her expertise in a big city such as
Johannesburg or Bloemfontein than a small
town such as Bultfontein
where she has been living since her marriage in 2007.
[50]
I am not persuaded by Ms Van Jaarsveld’s opinion that “the
possibility exists that Ms P[...]
would have lost her work as a
project co-ordinator due to her physical and psychological impairment
after the accident even if
she had not married.” Let me
put the record straight. At the time of her marriage, the
plaintiff was not employed
as a project co-ordinator but rather a
business development manager. No expert had ventured to say the
plaintiff was now
totally or 100% disabled. The plaintiff
herself reckoned that, in her present condition, she could not return
to her previous
work. Well, she may not be capable to work as a
business development manager, the most rewarding of the various types
of
jobs she ever did. However, that did not and does not mean
she is now absolutely unemployable. She is not a professional.
Her occupational history showed that before 2003 she did all kinds of
other jobs to earn a livelihood. Dr Earle noted:
“
She didn’t
feel that she would return to her previous work.”
Obviously the doctor did
not make a finding to that effect.
[51]
Dr Repko found that the plaintiff’s injuries have become
chronic and permanent in nature. It
was not his opinion,
though, that the plaintiff would never be able to work again.
[52]
Ms Van Jaarsveld concluded her assessment report as follows:
“
Mrs P[...] will
find it difficult to secure alternative employment in the open labour
market as following factors will have a negative
impact on her
chances to secure alternative employment:
o
Mrs P[...] is already 38 years old;
o
Mrs P[...] will thus have to secure employment from a sympathetic
employer who would be willing
to accommodate her.
o
Mrs P[...] will have to compete with more able bodied individuals.”
[53]
I accept that the plaintiff’s capacity to work has been
impaired, to a certain extent, by the accident.
However, I am
not persuaded that the accident has so disabled her that she has
become virtually unemployable.
[54]
Besides constant headaches, the plaintiff also complained that she
experienced neck pains, balance problems,
memory and concentration
problems. I deem it unnecessary to deal at length with the rest
of these complaints as I did with
the first, in other words, the
headache problem.
[55]
As regards the plaintiff’s balance, experts express divergent
views. At paragraph 10.7 on p9
of the neurological assessment
report Dr Repko commented as follows:
“
10.7
BALANCE
With a Rhömberg-test
there was an inclination of the patient to veer towards the right.
With open eyes the patient could
not balance herself standing on the
right leg only, although she could do it on the left. She was
inclined to fall over towards
the right.”
See p34, Bundle 2.
[56]
At paragraph 4 on p 37 Dr Repko, under the heading: Discussion of
present complaints came to the following
conclusion concerning the
balance problem complained of:
“
4.
A
BALANCE PROBLEM
This problem is a true
complaint and was found on clinical examination. It is possible
that it is due to the fact that the
patient sustained a fracture of
the base of the skull, which would have damaged the inner ear giving
rise to not only to some hearing
loss as found on clinical
examination but to disturbance of the function of the balance organ,
which is also placed in the middle-ear
area. In my opinion
however the sensory loss over the right half of the body plays the
major role in the balance problem
and explains adequately why the
patient cannot balance herself open-eyed standing on the right leg.”
See p37, Bundle 2.
[57]
About the balance problem, Ms Human, at paragraph 2 of her
audiological assessment report recorded the plaintiff’s
complaint as follows:
“
Mev. P[...] kla
van swak gehoor in haar regteroor. As sy op haar linkeroor lê,
hoor sy nie. Sy is ook dikwels
van balans af. Sy loop in
goed vas en kan bv. Nie op die plaas deur ‘n draad klim nie.
Sy ervaar soms ‘n
steekpyn in die regteroor. Daar is nie
dreinasie vanuit die ore nie. Sy ondervind soms tinnitus,
regs. Daar is
nie ‘n familiegeskiedenis van
gehoorgestremdheid nie. Sy word nie aan lawaai blootgestel
nie. Sy moet die TV
soms effens harder stel en sit voor in
vergaderings om behoorlik te kan hoor.”
See p86, Bundle 2.
[58]
The audiologist then carried out certain tests or examinations and
found that everything was normal with
plaintiff’s right ear.
Her finding was couched in the following manner:
“
Otoskopies lyk
alles normal. “n Timpanogram is uitgevoer.
Daarvolgens het sy normale middeloorfunksionering in
beide ore.
Ipsilaterale reflekse is in die regteroor getoets en is normal
ontlok. Ek het ook ‘n diagnostiese
oto akoestiese
emissiemeting uitgevoer om die funksionering van die koglea van die
regteroor te ondersoek. Sy het “slaag”
response oor
die hele frekwensiespektrum van 750 Hz tot 8 000 Hz gekry.
Ons kan aanvaar dat die koglea normal funksioneer.
Suiwertoonoudiometrie dui op gehoordrempesl, wat bilateral binne
normale perke val. Daar is egter ‘n defnitiewe verskil
tussen die ore. Mev. P[...] se gemiddelde suiwertoondrempel vir
die linkeroor is 3,3 dB, terwyl dit 18,3 dB in die regteroor
is.
Gehoordrempels van <25 dB word beskou as normal. Sy het
spraakontvangsdrempels van 0 dB, links en 5 dB, regs.
Sy behaal
100% spraakdiskriminasie by 20 dB, bilateral. (“n
Normalehorende persoon moet 100% hoor by ten minste 30
dB).”
See paragraph 3 on p86,
Bundle 2.
[59]
The conclusion of the audiologist was quite important. She
concluded:
“
Die verskil tussen
haar ore mag veroorsaak wees deur die ongeluk, aangesien die impak
van die ongeluk aan haar regterkant was.
Aangesien haar
gehoordrempels binne normale perke val, behoor dit nie haar
bevoegheid as werknemer te beïnvloed nie.
Die
balansstoornis mag lasting wees, maar dit wil voorkom asof dit ne met
sekere aksies voorkom en slegs sekondes duur, bv. Wanneer
sy deur ‘n
draad klim of aantrek of opstaan nadat sy gesit of gelê het.
Verdere ondersoek deur ‘n ONK art
kan dit moontlik net
bevestig. Sekere manuevres word deur die ONK arts uitgevoer om
balansstoornis te ontlok. Oefeninge
word soms voorgeskryf as
daar vermoed word dat partikels in die halfsirkelvormige kanale kan
wees.”
See paragraph 3, on p87,
Bundle 2.
[60]
The plaintiff complained to Dr Repko that the hearing through her
right ear had declined. Dr Repko
found there was such a
decrease of hearing. He stated that the origin of the
diminished hearing appeared to be damages cranial
nerve.
[61]
About the plaintiff’s right ear and deafness Dr Earle
commented:
“
With this degree
of concussion and no post-traumatic amnesia it is most unlikely that
she could have suffered a serious injury.
A CT brain scan
apparently showed a haematoma or it might have been a haemorrhagic
contusion and some brain oedema.
This scan is now missing
and I saw no report and it must simply be placed in a doubtful and
unproven category but cannot be ignored.
One notes that she has
certain complaints which started at the time of the accident and
still persist and I found it difficult
to tie them in with the
accident.”
See p49, Bundle 2.
[62]
Whatever the extent may be of the plaintiff’s reduced hearing
of her right ear, I am persuaded that
it will not adversely affect
her performance as an employee to a very large extent.
[63]
A few of the experts such as Dr Repko, Dr Earle and Mr Joubert, among
others, remarked about the plaintiff’s
emotional status.
There was genuine concern that her emotional turmoil or depression
was also probably implicated in her
chronic state of unwellness.
Among the aggravating stress factors the following were specifically
mentioned: her divorce,
her reproductive infertility, her artificial
insemination, the agony of her miscarriage and her persistent anxiety
about her childlessness.
To a greater or a lesser extent, these
unfavourable emotional factors have contributed to her chronic state
of pains.
[64]
Mr Joubert expressed his opinion as follows:
“
Ms P[...] ‘s
neuropsychological level of performance is potentially also under
influence of the chronic pain which she presents
with. Although
not noted as a factor during this assessment, chronic pain is known
to have an impact on procession speed
(Klle
et
al
2005) and levels of attention, concertration and memory (Dick and
Rashiq 2007).
The neuropsychological
problems Ms P[...] presents with can be expected to have a
significant impact on her performance in a formal
work environment,
with her impaired processing speed and levels of attention,
concentration and memory of note. Theses neuropsychological
problems can equally be expected to feature significantly during
academic pursuits should Ms P[...] decide to do so.”
[65]
There were certain inconsistences which surfaced during the
interviews the plaintiff had with some of the
experts. For
instance, according to the assessment report by Mr Joubert, the
highest level of formal education her father
attained was Grade 12.
See paragraph 4, p3 of the report or p59, Bundle 2. However,
according to the assessment report
by Ms Van Jaarsveld, her father
had a university degree in teaching. See paragraph 1.2, p2 of
the report or p12, Bundle 2.
Her mother has a diploma
in education. See paragraph 4, page 3 Mr Joubert’s
report. The next moment her mother
had a degree in teaching.
See paragraph 1.2, page 2 Ms Van Jaarsveld’s report.
[66]
One finds further inconsistences concerning the occupation of the
plaintiff’s parents. Her father
was a farmer – Mr
Joubert’s report
supra
. Her father was a broker –
Ms Van Jaarsveld’s report
supra
.
Her mother was a
handcraft shop assistant. See Mr Joubert’s report
supra
.
Her mother was a teacher. See Ms Van Jaarsveld’s report.
[67]
The aforesaid material inconsistencies were disturbingly worrisome.
Where a claimant’s biographical
information of her family
members appears to be so distorted, serious doubt is cast on her own
alleged level of education.
Questions arose on my mind as to
whether her first marriage to Henry was dissolved through death or
divorce. See Ms Ackerman,
paragraph 2.3, p3 or page 79, Bundle
2 and Dr Earle, paragraph 4, page 7 or page 51, Bundle 2
respectively.
[68]
In view of these and the facts as a whole one has to guide against
the danger of exaggeration. In assessing
her future income
potential I am inclined to say the lower quartile of Paterson C4
remuneration scale ought to be used. I
am not persuaded by the
argument that the plaintiff will never again earn any income in the
future. According to certain
experts the plaintiff herself
feels that she can no longer work. The difficulty I have with
her feeling stems from the facts
that I could find no expert who
pertinently ventured to express a positive and a firm opinion in
support of her feeling.
[69]
Dr Repko found that as a result of the head injury the plaintiff had
a deterioration in attention spam, a
deterioration in other mental
functions, degeneration of intervertebral disc which may cause
pressure on a nerve root and that
the possibility still remains that
she may develop post traumatic epilepsy. The concluded:
“
It is my opinion
that due to the complaints the patient has as a result of the
injuries sustained in the accident, which have become
of chronic and
permanent nature, she may develop depression.”
See p38, Bundle 2.
[70]
Although the doctor described the plaintiff’s injuries as
chronic and permanent in nature, he refrained
from expressing a firm
opinion as regards the exact extent of her disability. He did
not say precisely what other mental
functions of the plaintiff have
deteriorated. Instead he deferred to a clinical psychologist.
[71]
On the contrary Dr Earle was very critical about the alleged head
injuries and their alleged adverse impact
on the plaintiff.
Among others he firmly expressed the opinion that it was most
unlikely that she would develop epilepsy.
He expressed the
opinion on 8 November 2011, being the dated of the interview, almost
8½ years after the accident.
He advised that clinical
neurologist would be an appropriately qualified expert to categorise
the extent of her problems such as
memory; that he could not
attribute the entire outcome to the head injury and that she could
return to her previous type of work.
[72]
Dr Repko saw and examined the plaintiff on the 8
th
August
2011. By then she had already lost her first husband. She
had already had an unfortunate miscarriage.
As I pointed out
earlier those two were some of the traumatic factors which caused her
to develop depression or aggravated it.
[73]
The matter was heard in 2014, some 11 years and 5 months after the
accident in 2003. During that period
the plaintiff worked and
earned income for 6 years and 8 months. At the time of the
hearing the plaintiff was 39 years of
age. The pre-morbid
expectation was that she would be gainfully occupied until the year
2040. In that year she will
turn 65 years of age and retire.
As from 2014 her remaining work life span was 65 – 39 = 26
years. Her claim
for future loss of earnings was calculated on
the assumption that she was totally disabled and that she will never
earn any income
during the next 26 years.
[74]
About her employability or otherwise Dr Earle commented as follows:
“
I think if she
needed to and does want to maybe she could return to her previous
type of work. She did after all continue
with that for five
years after the accident and intermittently for two and a half years
since then.”
See p12, of the report or
p55, Bundle 2.
[75]
Now, the defendant contended that since she was not totally disabled
she was able to earn an income for years
in the past after the
accident, she has made out no case that she is totally disabled to
earn further income for years in the future
after the adjudications.
There was substance in that argument.
[76]
Some mathematical approach is now needed here. Eleven years
times 12 (+ 5 months) = 137 months.
Six years times 12 months
(+ 8 months) = 80 months. Between the date of the accident
being 4
th
April 2003 and the date of adjudication –
there were ±137 months. During that period the plaintiff
was gainfully
employed for 80 months. Therefore 80/137 x 100% =
58.4%.
[77]
Twenty six years x 12 months = 312 months. 312 months x 58.4% = 182
months. From 2014 until 2040, the plaintiff’s
working life span
consists of 312 months. The chances are that she would probably
be gainfully employed for ±182 months
of that period. It
follows, therefore, that she is likely to be unemployed for a period
of 312 – 182 = 130. Put
differently 130 months
312
months x 100% = 41.6%.
[78]
Now I turn to exhibit 1, actuarial assessment report. Mr
Doubell estimated the plaintiff’s future
pre-morbid income
after 30% reduction of contingencies to be R4 016 679,00.
The actuary’s prediction was
that the plaintiff’s future
post-morbid income after contingencies would be naught. With
that assumption I am in respectful
disagreement. I generously
worked on the basis of the figures given by the actuary before the
deduction of any contingencies
– see p5, exhibit a.
[79]
The estimated future loss of earning is R5 738 112,00.
That figure was given. It is
my considered view that she would
probably work again in the future. The chances that she may are
at most 58.4% and at least
50%. Her probable future loss of
earnings may be estimated as follows: R5 738 112 x
41.6% = R2 390 880,00.
This is based on the
assumption that she has about 58,4% chances of being employed in the
future which is the equivalent of about
15 years out of 26 years.
By the very nature of predictions are not accurate. In the
worst case scenario the chances
that she may work again are about
50%. In that event her probable future loss of earnings can
fairly be estimated as follows:
R5 738 112 x 50% =
R2 869 560. This amount represents the likely income
she may earn during 13 of the
26 remaining years of her work life
span.
[80]
The average between the 15 years scenario and the 13 year scenario is
R2 629 968. In my view
this represents a reasonable
estimate of the plaintiff’s possible future loss of earnings.
[81]
The a foregoing estimate is subject to an apportionment in accordance
with the plaintiff’s degree of
contributory negligence.
The agreed degree of negligence attributable to her was 25% of her
proven damages. Therefore
the final compensation due to her in
respect of future loss of earnings will have to be accordingly
adjusted.
[82]
To sum up the final position is as follows:
82.1
Past medical expenses
R 38 153
82.2
Past loss of earnings
R
0
82.3
Future loss of earnings
R2 628 968
Total
R2 668 121
Therefore the plaintiff’s
entitlement or proven damages less 25% apportionment equals
R2 668 121 x 75% = R2 001 091.
[83]
Accordingly I grant judgment in favour of the plaintiff against the
defendant as follows:
83.1
Payment of sum of R2 001 091 plus interest thereon at the
rate of 9% per annum from the 31
st
day after this order.
83.2
Payment of the qualifying fees of the following expert witnesses of
the plaintiff:
Dr
T W Doubell, actuary;
Ms
S van Jaarsveld, industrial psychologist;
Dr
P Repko, neurosurgeon;
Ms
A Ackerman, counselling psychologist;
Ms
M Human, audiologist;
83.3
The costs of the action on the party and party scale.
M.
H. RAMPAI, J
On
behalf of the plaintiff:
Adv.
L. A. Roux
Instructed
by
Claude
Reid Inc.
BLOEMFONTEIN
On
behalf of the defendant:
Mr.
P. J. Moeti
Instructed
by:
Bokwa
Attorneys
BLOEMFONTEIN