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[2012] ZAGPPHC 297
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Venter v Road Accident Fund (50016/10) [2012] ZAGPPHC 297 (19 November 2012)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 50016/10
Date:19/11/2012
In
the matter between:
BRENDA
VENTER
…......................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
................................................
Defendant
JUDGMENT
BEASLEY
AJ
1.
The Plaintiff is a 48 year old woman who was injured in a motor
collision which took place on 31 December 2007. Arising out of
the
accident the Plaintiff suffered injuries and she sued the Fund for
damages.
When
the trial came before me the issues between the parties had been
narrowed down to the quantum of damages, in particular, damages
for
past and future loss of earnings and general damages. By agreement
between the parties certain medical reports were admitted
and the
only witness who gave evidence at the trial was the Plaintiff
herself.
2.
At the time of the accident the Plaintiff was passenger in a motor
vehicle driven by her son. In the accident she suffered a
whiplash
injury. After the incident she and her son went to the local police
station to report the accident and she then went home.
She started
experiencing discomfort in her neck and left arm and she consulted
her family doctor a few days later.
He
recommended physiotherapy but when this proved to be unsuccessful the
Plaintiff consulted an orthopaedic surgeon.
She
was diagnosed with having sustained "... a typical flexion,
extension injury to the cervical spine, with a rotation component".
This led to a sequestration of the disc with intrusion into
left-sided C6, C7 foramina and nerve-root concretion with a
radiculopathy.
3.
On 7 February 2008 the Plaintiff underwent an operation to her neck
where an anterior fusion of the discs was carried out. The
operation
was successful and the Plaintiff was discharged the following day.
She wore a neck brace for the next six weeks. She
attended one follow
up appointment with the surgeon but since then she has not received
any further medical treatment in connection
with her neck injury.
According
to the report of Dr de Klerk, a neurosurgeon, the Plaintiff has been
left with mild residual symptoms in her neck. However,
he concluded
that the Plaintiff would be able to participate in a well-constructed
gymnasium work-out programme and should be able
to play sport such as
tennis and golf. As for her employment opportunities, Dr de Klerk
stated as follows:-
"She
is fully employed and earns a good salary. The work description
however indicates that there will be stress on her cervical
spine.
The impairment due to a one level discectomy with stabilisation is
8%-10% taking into consideration her work description.
This will have
a negative influence on her productivity of up to 15%. She will have
to make adaptations in the future to alleviate
the stress on her
neck. In all probability she will have to arrange to be office bound
as from the age of 60 and then she will
be able to retire at the age
of 65. The change in position might very well cause loss of
performance bonus, commission money and
even a reduction in salary.”
Dr
de Klerk assessed the need for the Plaintiff to undergo further
surgery to the areas adjacent to C6/C7 to be at between 15-20%
within
the next 10-15 years.
However,
on this score the Plaintiff herself testified that she would not
undergo further surgery and would continue treating her
injury
conservatively with the use of painkillers and other medication.
4.
The personal circumstances of the Plaintiff reveal that she came from
a modest background. Her father worked on the mines while
her late
husband was a production manager at a mine. (The latter had passed
away suddenly as a result of a ruptured ulcer on 25
December 2010,
some three years after the accident). After matriculating the
Plaintiff worked as a cterk at the Johannesburg Airport
and then
later worked at the Post Office for 2 1/2 years when she resigned
with the birth of her son. In March 1988 the Plaintiff
took up
employment with First National Bank in Zeerust. Except for a brief
period of 4 months she has remained in her employment
with FNB. (In
April 2008 the Plaintiff stated in her evidence that she wished to
try out different employment and she joined Gemini
Freight as an
administrative clerk. However, she found this job too quiet and
uninteresting and she re-applied to FNB to get her
old job back). She
re-joined FNB in 2008 and she is stiil with the bank.
5.
The Plaintiff has achieved an impressive career record with her
present employers. She completed a certificate in banking in
2002, a
marketing diploma in 2008 and an advanced marketing diploma in 2010
at the institute of bankers. Her current position is
the regional
consultant in the FNB Credit Card Division. This entails her visiting
some 32 FNB branches in the North West Province
where she trains bank
employees. She has to do a great deal of driving since her area of
responsibility covers a radius of some
300km. Understandably, this
involves considerable strain on her neck. However, the Plaintiff is
obviously a woman of considerable
character and determination.
Indeed, I must say that the Plaintiff created a most favourable
impression in giving evidence. In
fact, after the death of her late
husband the Plaintiff sought a promotion to area manager for the
North West Province in the full
knowledge that this would involve her
in more travelling than before. At the same time she moved to
Potchefstroom to be close to
her two children. Her son obtained a
degree in IT technology at Potchefstroom and her daughter is
presently completing a degree
in microbiology. The obvious success
enjoyed by her children has been no doubt in large measure due to the
efforts of their mother.
The Plaintiff stated that the stress of her
work means that she has virtually no social life since she spends
most Saturdays resting
while she attends church on Sundays.
6.The
Plaintiffs current salary package amounts to some R30 000.00 per
month. According to her terms of employment she will retire
on
pension at the age of 60. She feels that further promotion within FNB
is limited since, any promotion would involve her taking
responsibility for an even larger area and the travelling would then
be too difficult for her. She also feels that she is not equipped
to
take up a full time position in the office since this would cause
undue stress to her neck.
7.
At the trial, the central issue of dispute between the parties
related to the Plaintiffs claim for future loss of earnings. The
claim for past loss of earnings was not persisted in by the Plaintiff
since no such loss had in fact been suffered. As far as general
damages were concerned, both counsel were in agreement that the
parameters for this claim lay roughly between some R150 000-R200
000.
8.
Counsel for the fund submitted that the Plaintiff had not made out a
case for any damages arising out of future loss of earnings
or
impairment of earning capacity. He argued that the Plaintiff had
effectively been in employment with FNB for some 24 years and
it was
overwhelmingly probable, in view of her employment record, that she
would remain on in such employment, at least until achieving
retirement age.
9.
Counsel referred me to the recent unreported judgment by Bizos J.A.
in the matter of Devsel v Road Accident Fund, case number
2483/09
handed down in the South Gauteng High Court on 24 June 2011. In that
case the plaintiff had suffered a similar whiplash
injury which had
resulted in a 5% impairment of her whole person function, which would
increase to 7.5% by the age of 60. Despite
her injury the plaintiff
had made significant progress in her field of employment and Bizos AJ
found that:-
"... her employment
contract as it was at the time of the delict was replaced with a
significantly higher profile contract
after the accident. If
anything, her earning capacity has increased
recently...
” (para 38)
On
these facts, Bizos AJ concluded that no future loss of earnings had
been proved. Accordingly, no loss of earning capacity had
been
proved, since -
"...
a claim for loss of income is effectively a quantified claim for loss
of earning capacity and a claim for loss of future
earning capacity
cannot be made without the proof and quantification that is found in
its resultant loss of future income."
(para 27)
The
learned acting judge held further:-
"...without
a loss of income the loss of earning capacity becomes a misnomer and
remains a non-patrimonial loss at best that
cannot be quantified in
money because it has not truly led to monetary loss... "
(para
29)
Bizos
AJ dealt at length with a number of cases in which he points out that
the two concepts appear to be interchangeable (para
18) and that
courts had sometimes made an order in respect of loss of income
rather than an order for loss of earning capacity,
(para 22)
10.
However, as pointed out by Hurt AJA in Bane v D'Ambrosi
2010 (2) SA
539
SCA at 547 15:-
"the
essence of the computation of a claim for loss of earnings is to
compensate the claimant for his loss of earning capacity"
The
learned acting judge of appeal then refers to the locus classicus on
the topic
i.
e. Santam Versekerinqsmaatskappy Beperk v Byleveldt
1973 (2) SA 146
(A) at 150.
In
the passage cited Rumpff A.R. stated as follows:-
"Die
verlies van geskiktheid om inkomste te verdien, hoewel gewoonlik
gemeet aan die standaard van verwagte inkomste, is 'n
verlies
van geskiktheid en nie 'n verlies van inkomste nie."
The
same point is made by Trollip A R in the Byleveldt case at 174:-
’’
basically,
it is true, the compensation our courts award is also for impairment
of the capacity to earn, but generally it is measured
by reference to
the loss of earnings."
Thus,
whilst usually measured on the basis of a future loss of income the
claim remains one of general damages for loss of earning
capacity. It
seems to me therefore that Bizos AJ goes too far in concluding that
the oniy method by which loss of earning capacity
can be established
is by proof of actual loss of future earnings.
11.
It also seems to me, as a matter of general principle that the fact
that general damages may be difficult to prove does not
mean that the
court should not do the best it can on the available evidence before
it in any given case.
In
Southern Insurance Association Limited v Baiiev N.O.
1984 (1) SA 98
(A) at 113 E, Nicholas JA said the following
"Any
enquiry into damages for loss of earning capacity is of it's nature
speculative, because it involves a prediction as to
the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the court can do is make an estimate,
which is often a very
rough estimate, of the present value of the loss."
12.
Turning to the case in casu I accept that the Plaintiff will be
required to put in an extra amount of effort in order to discharge
her duties in the future. On similar facts in the Deysel case Bizos
AJ regarded this as a form of future pain and suffering, as
it were,
which could be built in to the claim for general damages (see paras
45 and 49). Accordingly, he dismissed the claim for
future loss of
earnings and instead granted the Plaintiff a higher award for general
damages than would otherwise have been made.
I
do not agree with this approach. Where a plaintiff suffers an
admitted impairment of her capacity to earn an income then, provided
there is a factual causal link, this impairment can be translated
into an actual loss or {if such loss cannot be calculated) a
future
potential loss.
13.
On the present facts I accept that the Plaintiff may well not suffer
a loss or diminution of her present income in the future.
However,
this does not mean that she would not (but for her injuries) have
enjoyed an even better income. It seems to me that,
depending on the
facts, the court is entitled to investigate the relevance of such
potential future loss. In the present case !
have come to the
conclusion that the plaintiffs present impairment may well result in
a future loss. (On the facts in the Deysel
case it was held that no
such future loss would ensue).
14.
As a starting point I have regard to the actuarial assessment made by
Mr H du Plessis in the papers before me. He capitalised
the value of
the Plaintiffs present income over the next 12 years and arrived at a
figure of some R3 000 000.00 (I have rounded
off his final figure).
To arrive at the figure which Plaintiff could (but for her injuries)
have earned i have assumed that any
higher position obtained would
have resulted in a monthly increase in income of some R3 000.00 per
month (i.e. 10%). I have assumed
that any increase would have been
moderate rather than steep, I should add that no direct evidence from
the bank itself was forthcoming
as to precisely what future prospects
for promotion were available to a person with the qualifications and
proven track record
of the Plaintiff.
On
this approach, the loss of future potential income amounts to R300
000.00.
15.
However, I must have regard to the contingencies. At the one extreme
is the possibility that the Plaintiff might yet in the
future apply
for and obtain a promotion. On the other hand the Plaintiff though
willing to apply for promotion may be held not
sufficiently fit to
carry out the required functions. There is also the problem of taking
into account an adjustment for Plaintiffs
income tax liabilities, a
matter which was not canvassed before me.
i
have decided to adopt a robust approach. I propose to apply a rather
severe contingency factor of two-thirds to the amount arrived
at. I
consider that such an approach is fair to both parties and does not
operate unduly in favour of the one or the other.
As
for the amount of general damages, as noted, there was not much
debate between counsel as to the general parameters of the award
and
I propose awarding the sum of R200 000.00 under this head of damages.
In
the result, I make the following award:
1.The
Defendant is ordered to pay to the Plaintiff:-
1.1
the sum of R200 000.00 for general damages;
1.2
the amount of R100 000.00 for loss of earning capacity;
2.
The Defendant is ordered to pay interest on the above amounts at the
prescribed legal rate from a date 14 days after date of
judgment to
date of payment;
3.
The Defendant is ordered to pay the costs;
4.
It is recorded that the Defendant has given an undertaking in terms
of section 17 (4) of the Road Accident Fund Act, 56 of 1996
in
connection with the injuries suffered by her in the collision.
D.N.
BEASLEY AJ