De La Fontein v Road Accident Fund (3051/00 , 3051/2000) [2006] ZAWCHC 21 (25 May 2006)

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[2006] ZAWCHC 21
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De La Fontein v Road Accident Fund (3051/00 , 3051/2000) [2006] ZAWCHC 21 (25 May 2006)

IN THE CAPE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO:
3051/2000
In the matter
between:
ALAN DE LA
FONTEIN
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
JUDGMENT :
25 MAY 2006
MEER, J:
[1] In the early
hours of the morning on Sunday 30 January 1994, a collision occurred
on the R27, at the Melkbos turnoff near Cape
Town, between a Suzuki
motorcycle driven by Plaintiff, a young man aged 19 at the time, and
a Volkwagen Golf Motor Vehicle, insured
by defendant. The driver of
the insured vehicle, a police officer was transporting a colleague
and his wife, who was in labour, to
the hospital.
[2] As a consequence
of the collision, Plaintiff incurred the following bodily injuries:
2.1 severe injury to
the right leg necessitating amputation between the knee and the hip;
2.2 severe injury to
the right arm necessitating amputation at the right shoulder;
2.3 damage to his
sinus passages;
2.4 further general
bruising to the body; and
2.5 cerebral
swelling.
Plaintiff was
unconscious for nine days after the collision.
[3] At the time of
the accident plaintiff was a healthy, energetic youngster in the
prime of his life. He had just completed matric
and his future
stretched optimistically before him. He had hoped to make a career
incorporating his interests in the field of art
and design. The
accident tragically thwarted plaintiff’s hopes and aspirations,
leaving him severely physically disabled, partially
brain damaged and
with no prospects of pursuing a chosen or any career. Today, fourteen
years after the accident, plaintiff at the
age of 33 is virtually
wheelchair bound, dependent and attempts to eke out a living as a
busker in and around the tourist spots of
Cape Town.
[4] In April 2000,
plaintiff issued summons against the defendant, being the juristic
person responsible in terms of Act 56 of 1996
for claims arising out
of the negligent driving of motor vehicles on public roads. Plaintiff
claimed damages in the sum of R 9 254
785.00, made up as follows: R71
166.57, for medical expenses, R1 227 462.00, for past loss of
earnings, future loss of earnings of
R6 526 323.00 and general
damages of R1 500 000.00.
[5] On 29 October
2004, by agreement between the parties this court ordered defendant
to pay 40% of plaintiff’s proven damages and
his party and party
costs incurred up to that date. Thereafter the quantum of plaintiff’s
claim was settled in all respects save
as to his past potential
earnings and future loss of earnings.
[6] The issues which
now fall to be determined by me are therefore confined to Plaintiff’s
loss of past potential earnings and future
loss of earnings. Before
considering the evidence of several experts who testified on these
aspects it is helpful to obtain a profile
of the plaintiff.
The Plaintiff
[7] The Plaintiff is
one of two children. He comes from a troubled, if not dysfunctional
family background. His parents separated
when he was in his teens and
he remained with his mother. He does not know much about his
biological father and has no contact with
him. Plaintiff’s mother
has bipolar affective disorder. Plaintiff has had two stepfathers,
the second of whom is reported to have
been both physically and
emotionally abusive to plaintiff while he was growing up.
[8] At the age of 15
the plaintiff was placed in a place of safety for approximately a
month after threatening his stepfather with
a knife. His mother
subsequently divorced the stepfather. Finances appear to have been an
ongoing issue in the family home.Plaintiff
attended “mainstream”
schools until standard 8. Thereafter, because of his interest in art,
he enrolled at the Cape College of
Art and Design where he completed
his National Senior Certificate in Art and Design in December 1993,
matriculating with a D pass.
His matric results did not qualify him
for entrance either to a University or Technikon.
[9] At
the time of the accident plaintiff had just finished matric and
commenced his end of year holiday. Whilst he was interested
in the
art and advertising field, he had made no career plans. By all
accounts he was a sociable and gregarious fellow, popular with
his
peers, and lead an active life. He rode a motorbike and was a
keen
outdoor person whose pursuits included mountain hiking, trailing,
camping, surfing, skate boarding, cycling and martial arts.
The
accident cruelly and tragically transformed plaintiff’s reality.
[10]
The
amputation of his right arm and leg has
severely affected his mobility. He makes combined use of an above
knee prosthesis to his right
leg, and a wheel chair, moving around
with difficulty. He
needs assistance in
almost everything he does
. He often
experiences pain and cold in the extremities of his amputated limbs
.
The head injury has left him with cognitive and/or behavioural
problems.
[11] His
capacity to engage or compete meaningfully in the employment market
has been severely hampered if not extinguished. This
notwithstanding,
he has made commendable, albeit not very successful efforts to earn
an income since the accident. This has been
through a brief foray
into desk top publishing, (a course he did after the accident), an
unsuccessful stint at an advertising agency,
and a short period spent
trading with crystals, gems and strawberries. Plaintiff is currently
unemployed, but as aforementioned
tries to support himself by
busking, primarily at the Waterfront and lower Cable Car Station in
Cape Town. In addition he receives
a State Disability Grant.
[12] Plaintiff
relies on others for accommodation and currently shares a flat with
friends. The flat is ill equipped for his needs.
He is unable to use
his wheelchair there and sleeps on a thin mattress on the floor. He
uses his disability grant and the earnings
he ekes out of busking, to
feed himself and pay the rent.
[13] The plaintiff
is unmarried. He has a son aged 7 who lives with his (the child’s)
mother. She is married, has two other children
and makes it difficult
for plaintiff to see his son. The plaintiff’s family, comprising
his mother and married sister aged 32,
have problems of their own and
are unable to provide him with the support he needs – be it
financial, physical or psychological.
Given his circumstances, it is
hardly surprising that plaintiff is given to high levels of
frustration and anger.
[14] Several expert
witnesses testified on behalf of plaintiff. These were Dr Alison
Madden, a clinical neuro psychologist, Liane
Durra, a speech
therapist and clinical psychologist, Ruth Ancer, a clinical
psychologist, Elsa Wakefield, a physiotherapist and
Richard Hunter,
industiral psychologist. In addition Jonathan Shubitz, who works in
the advertising industry and Verushka Dowling,
a former fellow
student testified for plaintiff. For the defendant, clinical
psychologist, Gerrit van Wyk, and industrial psychologist
Donovan
Shaw testified.
[15] It is generally
agreed by the experts that as a consequence of plaintiff’s severe
injuries he has a range of physical, emotional
behavioural and
possibly some cognitive problems.
Inter alia
these include
problems with mobility, phantom pains, balance, depression, memory,
speech difficulties, concentration problems, judgment
and
frustration. It is also common opinion that post accident he is
generally not likely to be able to gain and retain employment
on the
open labour market because of this combination of difficulties.
The reasons for
these opinions emerge fully from the testimony of the experts as set
out below.
Testimony of
neuro psychologist Dr Alison Madden.
[16] Dr Alison
Madden, is a registered clinical educational psychologist with a
speciality in clinical neuro-psychology and a particular
interest in
the neuro-rehabilitation of head injured persons. Dr Madden is a
consulting psychologist for Cape hospitals and a respected
and
recognized expert with vast experience in her field. She assessed the
plaintiff on 18 October 2005, and conducted a clinical
neuro-psychological assessment on him. The purpose of her assessment
was to ascertain the presence and extent of neuro-cognitive
sequelae
arising from the accident. She reported injury to the brain,
predominantly to the frontal lobes.
[17] Dr Madden explained
with reference to plaintiff’s hospital records that he had
experienced a long period of impaired awareness
from 30 January 1994
to 21 February 1994. His level of coma as indicated on the glasco
coma scale
1
,
measured 7/15 upon admission on 30 January 1994, indicative of a
severe injury. By 12 February 1994, he was only “generally making
sense”, and by 21 February, the coma reading had reached 15/15.
This, she said, correlated with the results of her
neuro-psychological
assessment.
[18] Psychometric tests
were conducted on plaintiff to illustrate the correlation between
behaviour and various areas of the brain.
From these Dr Madden
detected certain neuro-cognitive and physical deficits which in her
view have permanently impaired plaintiff’s
balance, gait, mobility,
writing fluency, concentration, recall and judgment. Her report
refers to “two primary areas of cognitive
compromise” namely
working memory and slowed processing speed. She reported slow reading
speed and comprehension with a score at
Grade 9 level.
[19] Especially
significant
was her testimony that pre accident plaintiff had
a superior IQ which placed him in the top 2.5% of the population.
This had been
severely compromised by the accident. She explained
this conclusion as follows.
She reported
plaintiff’s overall level of intelligence to be in the above
average range with an overall score of 112. The score
is however
negatively affected by his working memory difficulties which in turn
negatively impacts on verbal cognition. The result
is that his
functional level of verbal intelligence reduces his IQ score to 102.
Were one however to ignore the impact of his working
memory
difficulties on his verbal input, one is able to translate his verbal
IQ to what it probably was pre- accident. His score
for verbal
comprehension is then in the highly superior range at 136, that for
persons in the top 2.5% of the South African population.
[20] Dr Madden was
particularly concerned by what she referred to as plaintiff’s
“auditory verbal memory functions” or his ability
to recall oral
material immediately after it had been presented, as well as his
lapses in attention. She reported his dexterity to
be poor and
attention to detail below what one would expect from an art scholar.
She attributed these deficits to his head injury,
commenting that
they are in direct contrast to his highly superior language function.
Plaintiff’s use and application of language
is impaired by his
deficits of attention and memory.
[21] Throughout the
assessment Dr Madden noticed agitation, poor impulse control, a
strong need to engage and communicate, and inappropriate
responses to
social queues and setting. These she described as typical signs of
damage to the frontal lobes.
Dr Madden’s report
describes the Plaintiff as a “highly intelligent young man who
presented as agitated, acutely aware, reactive
and intense”. It
refers also to “subtle evidence of disinhibition” which she
explained as an impaired ability to react to a
particular stimulus,
and a lack of ability to respect social boundaries in interpersonal
settings. Her clinical observations reveal
also a young man with
tremendous courage and resourcefulness, but somehow lacking in
appropriate discretion as he attempts to regain
a semblance of his
former self.
The testimony of
clinical psychologists Ruth Ancer and Gerrit van Wyk.
[22] Ruth
Ancer, assessed plaintiff in September 2005 to determine the nature,
extent and severity of his psychological condition
arising from his
accident. Her assessment revealed a major depressive disorder,
exacerbated by his dependence on others. While he
displays impressive
courage and determination, the extent of his psychological suffering,
according to Dr Ancer, is significant.
In contrast, defendant’s
clinical psychologist Gerrit Van Wyk, who assessed plaintiff in
August 2005, testified to plaintiff’s
experiencing episodes of
depression as opposed to an ongoing depressive disorder.
[23] Van
Wyk reported that plaintiff was making an effort to be positive
despite his difficulties and referred to plaintiff’s intense
feelings of frustration at not being able to do anything with the
considerable drive he has. He feels acutely that he is a problem
to
those around him and does not socialise any longer because he feels
self conscious and inferior. Both Ancer and Van Wyk recommended
regular psychotherapy for plaintiff with a view to pharmacotherapy.
The testimony of
speech therapist, Liane Durra.
[24] Liane
Durra a speech therapist and clinical psychologist specialising in
neurological speech, interviewed the plaintiff in
January 2005. She
testified that his current speech pattern is indicative of language
impairment due to brain damage. Amongst his
speech and language
deficits she listed the following: a struggle to attend to verbal
information, word retrieval difficulties, mild
dysphasia (primary
language disorder due to brain damage), mild expressive language
difficulties, mild to moderate receptive language
impairment, slow
reading speed, impaired concentration, slow mental processing and
poor auditory verbal recall in paragraphs. From
p
laintiff’s
records, she testified, it is apparent that pre accident he had no
problem in communicating.
[25] The
difficulties, she suggests, are likely to affect his work
performance. He will struggle at tasks which require multi-purpose
reasoning skills and comprehension of complex language structures,
especially if information is provided verbally. Despite his above
average intelligence his cognitive emotional language and physical
deficits are impacting upon his adjustment since the accident.
In
view of these difficulties, she concluded, it is unlikely he will
ever be employed in the open labour market.
The testimony of
physiotherapist, Elsa Wakefield.
[26] Elsa Wakefield,
a physiotherapist in practice since 1964 with extensive local and
international experience of the physically
disabled, examined
plaintiff in February 2005. The outcome of his injuries, she
explained, is that he suffers constant phantom pains,
so called
because they occur “in the missing parts of the body” where
nerves, although cut off, still function and emit painful
signals.
There is also low back pain in the lumber region, associated with
physical activity, as well as keeping still for too long.
Ambulation
leads to pain in the left hip and the end of the amputation stump.
Pain and tiredness lead to irritability and poor concentration.
[27] Wakefield
described plaintiff as grossly disabled and was extremely pessimistic
about the prospects for rehabilitation. Instead
she predicted a
process of deterioration to his condition. She pointed to the fact
that his posture is severely lopsided and asymmetrical
because he has
half a body. He cannot sit for too long. He also suffers from
muscular skeletal symptoms. His left hand is “overworked”
and the
thumb joint will become arthritic due to over-use.
[28] She emphasised
how inadequate plaintiff’s living environment was, explaining the
effort it is for him to alight from a vehicle
on to the pavement and
up the stairs into his flat, an exercise which leaves him physically
exhausted. His environment, she explained,
needs to be user friendly
if freedom of movement and practical activities are to be
facilitated. Wakefield recommends a motorised
wheelchair. Commenting
on his work as a busker, she said the sad reality is that he is
simply begging.
Testimony of
Verushka Dowling.
[29] Verushka
Dowling was an art and design student with plaintiff at the Cape Town
Technical College in the early nineties. She said
the Plaintiff was
“good at everything” as a student and stood out. He was a free
flow artist, good with drawings, and very sociable,
friendly and well
liked. She could not remember him ever losing his temper or acting
inappropriately. Ms Dowling was a candidate
with plaintiff for
election to the student counsel and he was elected over her. After
matric Ms Dowling completed a one year graphic
diploma course and
then started working as a graphic designer. Her first job was that of
junior graphic designer in Johannesburg
in 1995 – 1996 with a
starting salary of R 3000.00 – R 4 000.00. She has since worked as
a graphic designer. Currently she is
employed in the UK as such.
Testimony of
Jonathan Shubitz.
[30] Jonathan
Shubitz, who operates his own advertising consultancy and has worked
in the advertising industry for 26 years, gave
some insight into the
competitive nature of the advertising industry. He also testified
about plaintiff’s period of employment
in the industry at the firm
Ogilvy’s in Cape Town, after the accident.
[31] Shubitz
sketched his own progression within the industry, giving some idea of
how an almost ideal career could proceed. Shubitz
commenced his
career as a camera man for the SABC where he worked for 2 to 3 years.
In 1979 he started working at Ogilvys, one of
the largest advertising
groups in South Africa. He remained at Ogilvys for 22 years until
2001 whereafter he formed his own company.
He had no tertiary
education when he started at Ogilvys. He progressed to the top in
record time from a junior copy writer, to full
scale copy writer, to
creative group head, creative director and thereafter executive
creative director. He explained that his acceleration
to the top had
been fairly rapid. He was lucky in this respect. He attributed his
meteoric rise in no small way to the fact that
he got a lucky break
in 1979 when Ogilvy’s obtained the Volkswagen South Africa account.
[32] The advertising
industry, he said is perceived as a trendy business for young people
with fresh ideas. Consequently there is
pressure for older people to
move on at about 40. Some become freelancers, hiring their services
back to their original companies.
He explained that it was extremely
difficult to get recruited into the advertising agency. For the one
or two vacancies which became
available yearly, candidates would be
recruited mainly from those who had tertiary education. Occasionally
persons without tertiary
education would be employed if they had
interesting portfolios and exceptional talent. He stressed the
competitive nature of the
industry. Qualities which fostered
promotion in the industry are skills in the fields of leadership,
communication, problem solving,
creative ability and determination.
[33] In 1997
Shubitz’s hairdresser told him about plaintiff’s situation and
asked if he would meet with him to consider if he
could have a career
in advertising. Mr Shubitz met the plaintiff, saw his drawings, was
impressed by his talent and agreed to let
him come into the studio to
see if he could develop as an art director using a computer. At the
time of the interview Shubitz did
not know that plaintiff had brain
damage.
[34] Within a brief
period it became clear that plaintiff could not recreate his previous
standard. Consequently Shubitz arranged
for plaintiff to be assessed
at the Red and Yellow school of Advertising for a bursary, in the
hope that he could be trained to become
an art director using a
computer. The assessment proved unsuccessful, the conclusion being
that the plaintiff would not cope because
of his disability.
[35] Shubitz then
offered plaintiff some form of “sympathetic employment”. A post
of junior administration assistant/assistant
studio co-ordinator was
created for him. His job was to help locate material and file it.
According to Shubitz, plaintiff proved
to be half a help and half a
hindrance only occasionally managing the simple tasks he had to
perform. He however tried extremely
hard despite his disabilities,
but his enthusiasm was unsustainable.
[36] Shubitz
described plaintiff as sociable, committed and very talkative. He was
struck by his unshakable enthusiasm and determination
which resulted
in his persevering despite his difficulties. He would alternate
between using his prosthesis and wheelchair at work.
Testimony of the
Industrial Psychologists.
[37] Richard Hunter,
an Industrial Psychologist who has spent 25 years in human resources
management, and with considerable experience
in medico legal
assessments, testified for the plaintiff.
[38] Hunter assessed
the plaintiff on 05 November 2004 and prepared two reports dated 22
September 2005 and 23 November 2005 respectively,
using various
documents and in particular an earlier report by industrial
psychologist, Godfried Fritz as collateral and background
sources.
The reports evaluate plaintiff’s work potential both before and
after the accident. Hunter’s initial report focused
on a general
career path for plaintiff using the Pattersen job grading system.
After however consulting with Jonathan Shubitz and
the human
resources manager at Ogilvys, Hunter prepared a second report
focusing on a career in the advertising industry.
[39] The plaintiff
told Hunter that he had a definite interest in the advertising
industry. His ambition was to become an art director
and eventually a
creative director in the industry. At the time of the accident he had
been preparing a portfolio of his work for
potential employers.
[40] Hunter’s
general career path for plaintiff, using Pattersen job grading
scales, envisaged as follows:
40.1 Procuring a
position in advertising during 1994/1995 at Patersen Grade B 2 level
with a total monthly salary of R6 253.00 as
per the Patersen February
2005 salary scale;
40.2 Progressing to
Patersen Grade C1-3 after three to five years, the total monthly
package for which as of 2005 ranged from R11,622
for C1, R13966 for
C2 and R16747 for C3;
40.3 Progressing to
Patersen job grade C4-5 after a further three to five years, at a
total monthly package of R19,497 (C4) and R22,322
(C5);
40.4 Progressing
from here to Paterson job grade D1-3, the level for Supervisors and
skilled employees after a further three to five
years . Total monthly
packages range from R26,579 for grade D1, R30,501 for D2, and R34,644
for D3
40.5 Plaintiff would
remain at the D3 level until age 65.
[41] At
the time of envisaging the above career path Hunter said he was
unaware of plaintiff’s pre morbid superior verbal IQ of
136,
placing him in the top 2.5% of the population. He had as
aforementioned also not as yet consulted with Shubitz
[42]
Hunter’s
envisaged specific career path in the advertising industry, using
industry specific gross salaries as per salary surveys
published in
ADvantage magazine
2
January 2006.
Hunter
envisaged the following career path for plaintiff in the advertising
industry after consulting with Shubitz and the human resources
manager at Ogilvys.
42.1 Entering the
formal labour market post –matric as a junior art director at a
starting salary of R5000 per month in today’s
terms;
42.2 Promotion to
the position of art director after two to four years with a starting
salary of R11,000 per month in today’s terms,
together with a
yearly bonus equal to one month’s salary;
42.3 Promotion to
the position of creative group head after approxiamately two to four
years with a starting salary of R22,500 per
month in today’s terms,
together with the same annual bonus;
42.4 Promotion to
the position of creative director after approximately ten years of
total experience with a starting salary of R30,000
per month in
today’s terms, together with the same annual bonus.
These figures
according to Hunter are conservative and do not cater for awareness
or fast tracking based on talent.
[43] Hunter
testified as per information from Ogilvy’s human resources manager
that the monthly salary figures referred to above,
exclude bonuses,
provident fund contributions and medical aid subsidies. Only a small
percentage of staff from the level of art director
upwards, receive
annual bonuses of one month’s salary. All staff qualify for medical
aid subsidies with an 80% employer subsidy
at the lower levels and a
subsidy of 50 to 60 % at the higher levels. On a sliding scale this
could, in monetary terms mean anything
between R1000 and R3500 per
month. Hunter was also informed that staff of 40 years of age and
over would qualify for a 7.5% of gross
monthly salary provident fund
contribution.
[44] Hunter placed
great store on plaintiff’s superior pre accident I Q as per Dr
Madden’s report, placing plaintiff in the top
2.5% of the
population. IQ, he said, is a very sound predictor of task
performance. A high verbal ability correlates substantially
with a
person’s ability to perform work of a complex nature. IQ and verbal
ability, he said, are sound predictors of career progression
particularly if they match career interest.
[45] The view that
school results were a “pathetic indicator” of job success, (as
expressed in writing by Willem Myburgh, of the
company Symmetric, and
to which Hunter was referred), found approval with Hunter. He ranked
verbal I Q, together with a high level
of interest, enthusiasm, drive
and determination, as a superior prediction of job success. With this
combination, Hunter said, qualities
with which plaintiff was graced,
“the sky is the limit”. Notwithstanding plaintiff’s poor matric
results, and lack of tertiary
education, his high IQ, above average
intelligence, keen interest in advertising and determination would
have gained him entry into
the advertising industry and he would have
achieved his career goals.
[46] The fact that
Plaintiff would have had no qualifications beyond matric, and
moreover that his matric results (1B, 2C’s and
4 E’s) were
mediocre, did not dissuade Hunter from his optimistic career
predictions, during cross examination. Nor would he concede
that the
entry level salary proposed by him was unrealistic for a matriculant
with no further qualifications in a competitive industry
such as the
advertising one. Plaintiff with his high verbal I Q, determination
and enthusiasm would, according to Hunter, have entered
the industry
notwithstanding the competition and commanded such a salary. Hunter
did however concede that the policy of affirmative
action would have
negatively impacted on plaintiff as a white male.
Plaintiff’s
past loss of earnings
[47] Hunter
testified as to plaintiff’s employment history and earnings after
the accident as follows:
47.1 Plaintiff was
unemployed during 1994 – 1996, the first three years after the
accident. During 1995 and 1996, plaintiff earned
R200 from desk top
publishing work.
47.2 From 1 January
1997 to 31 October 2001 plaintiff was employed at Ogilvys. A
certificate of service indicates his earnings to
have been R 19
500.00 over this period.
47.3 During 2002
plaintiff was unemployed and earned no income. He stayed with friends
in the Transkei.
47.4 During 2003
plaintiff traded in crystals, gems and strawberries. He had a
turnover of R 1000.00, but no profit.
47.5 During 2004 he
traded in paintings and sculptures from which he earned a profit of
approximately R200 per month, totalling R2400,00
for the year.
47.6 Since December
2004 he has been busking, earning between R20 to R70 a day, with
transport expenses of R60 per day.
47.7 Since December
1996 plaintiff has been receiving a Disability Grant from the
Department of Social Services and Poverty Alleviation.
As of February
2006 he has been receiving R950 per month. Records indicate payments
since December 1996 to have been as follows:
R430 from December
1996 –end June 1997
R470 from 1 July
1997 – end August 1997
R550 from 1
September 1997 – end June 1998
R580 from 1 July
1998 – end September 1998
R590 from 1 October
1998 – end June 1999
R614 from 1 July
1999 – end June 2000
R640 from 1 July
2000 – end June 2001
R680 from 1 July
2001 – end March 2002
R740 from 1 April
2002 – end October 2002
R770 from 1
December 2002 – end March 2003
R850 from 1 April
2003 – end March 2004
R900 from 1 April
2004 – end March 2005
R950 from 1 April
2005 – end February 2006
Testimony of
Patrick Shaw.
[48] Patrick Shaw,
an Industrial Psychologist with considerable experience in medico
legal assessments, and who gives evidence regularly
in MVA cases,
testified for the defendant.
[49] Shaw assessed
the plaintiff on 25 August 2005 and thereafter compiled a first and a
supplementary report. Plaintiff’s intentions
at the time of leaving
school as conveyed to Shaw were to study further at a technical
college to obtain post matric technical qualifications.
Had he not
done that, he said, he may have work shadowed and explored the
“market base”. He also mentioned further studies in
pottery,
ceramics and photography, as well as checking the field of
advertising to see where he would have fitted in. Finally he
said his
aim was to become a creative or art director, adding if he did not,
he would have done sculpture or radio work.
[50] In considering
career options Shaw, mindful of the fact that plaintiff had completed
a course in desk top publishing(DTP), enquired
about and learnt that
persons with DTP qualifications are employable by magazines and
advertising agencies. Shaw was however reminded
of the difficulties
white males experience in getting employment because of affirmative
action. Shaw consulted with Jonathan Shubitz
and with Pam Haddad of
the human resources department at Ogilvys about plaintiff’s
employment there and the industry in general.
Haddad referred to
plaintiff as a person with psychological “baggage” and problems.
[51] In predicting a
pre-accident career path for plaintiff Shaw took cognisance
inter
alia
of the following factors:
-plaintiff’s
troubled family background;
-the fact that that
he had completed matric in art and design, and showed a flair for
computer graphics and language;
-the fact that he
had obtained mediocre matric results with a D aggregate; -his above
average intelligence and intention of joining
an advertising agency
with a view to becoming an art or creative director.
[52] Shaw accepted
that plaintiff had creative ability and talent before the accident,
and he would have got into the advertising
industry. In Shaw’s
opinion plaintiff would have pursued a career within the advertising
field involving desk top publishing or
graphic design. Shaw stated
also that the career paths of art director and graphic designer
within the advertising agency, paralleled
one another.
Shaw’s
pre-accident career path for plaintiff.
[53] Shaw envisaged
the following pre accident career path. For this he too referred to
salary scales for the advertising industry
as published in ADvantage
magazine, of January 2005 and January 2006. He also consulted salary
tables included in the report of Industrial
Psychologist Godfried
Fritz.
53.1 Completing a
course in DTP by mid –July 1994, the year in which the accident
occurred. For 18 months post matric being self
employed, doing desk
top publishing jobs from home, earning R850 per month, whilst seeking
employment. The fact that the country
was at a low point economically
in 1994 would have adversely affected employment prospects.
53.2 In
1996 gaining employment at a light weight level as a DTP
operator/graphic designer at a monthly salary of R2000.00 –
R3000.00
in 1996 terms, based on the table supplied by Fritz.
3
He would have remained at this level for two years.
53.3 After
two to five years (1998-2001) moving to the level of medium- weight
desk top operator/graphic designer at a salary of R4000.00
–
R7000.00 per month based on Fritz’s table
4
After five to nine
years (2001 to 2006) moving to the level of heavyweight DTP
operator/ graphic designer at a salary range
of R7000 to R13 500 in
1996 terms, and remaining at this level until retirement at age 65.
The 2006 salary figures for this level
as published in ADvantage
magazine range from R8000 to R28000 per month with an average of
R18000, where Mr Potgieter for the
defendant, suggested Plaintiff
should be located.
[54] In Patterson
scale terms, Shaw explained he would take plaintiff up to levels C4
to C5, which was that for individuals with high
levels of skill, but
not beyond that to level D and managerial level where Hunter had
placed him at D3. He gave the following reasons
for this:
54.1 There was no
evidence of the requisite leadership qualities which justified taking
plaintiff to managerial level.
54.2 He expressed
reservations as to whether plaintiff would have had the requisite
emotional and executive intelligence, to gain
promotion to managerial
level. The former, encompasses drive, resilience and empathy; the
latter is the ability to apply intelligence
within a business
environment and includes analytical ability, creative thinking and
judgment.
54.3 He questioned
plaintiff’s capacity for judgment and decision making as well as
his inter-personal relations and ability to
deal with stress, given
his background circumstances. Here he cited the volatile incident
with the step father involving a knife.
These factors did not place
plaintiff in the category of well balanced individuals who made good
managers but left him at the category
of high level specialist.
54.4 Tertiary
educated persons had a higher chance of getting into managerial
positions. Here he cited Shubitz remarking he was not
comfortable
placing plaintiff beyond the position of senior art director.
[55] Shaw emphasized
that plaintiff’s very mediocre matric results would not have gained
him admission to a technikon or University.
He took issue with the
statement that school results were a pathetic indicator of career
success. School results, in his view are
a fairly reliable indicator
of future potential though, not infallible.
Determination of
loss of earnings.
[56] The usual way
of determining the issue of loss of earnings in a case such as this,
is to postulate the most likely pre-morbid
career with the applicable
earnings, and apply appropriate contingencies to the capitalised
total amount. From this must be deducted
the capitalised earnings of
the post-morbid career, part of which is historic fact (accident to
trial) and part of which is hypothetical
(future), also subject to a
suitable contingency deduction.
“
It is important
to bear in mind that the basis for a damages claim is “likely
earnings”, not optimal potential earnings as are
usually given by
Industrial Psychologists”. [See Koch, The Quantum Year Book 2006
VZR 2005 at 103].
[57] The
uncontraverted evidence is that before the accident plaintiff was of
superior intelligence with an IQ of 136 placing him
amongst the top
2.5% of the population. There is consensus that he had considerable
artistic talent and that he would have obtained
employment in the
advertising industry. I accept this. The fact that his superior
intelligence was not mirrored in his very mediocre
matric results,
especially given that his was an art oriented matric, his main field
of interest, is a fact which cannot be glossed
over. It is suggestive
of a somewhat perplexing “educational profile”. A possible
explanation for plaintiff’s weak school performance,
proferred by
clinical psychologist Gerrit van Wyk, is working memory problems.
There may indeed be others.
[58] Another aspect
which cannot be glossed over is the impact that growing up in a
dysfunctional home environment with a bipolar
mother, an abusive
stepfather and an absent biological father, must have had on
plaintiff’s psyche. His emotional profile may well
have been
flawed.
[59] Is it realistic
or likely, given plaintiff’s profile, that he would have risen to
the managerial heights in his career as postulated
by Mr Botha who
represented plaintiff? I think not. The evidence simply does not bear
this out. It does not indicate that plaintiff
would have had the
requisite leadership and other qualities necessary for progression to
managerial level. Election in Std 9 as a
class representative to the
student body, an illustration of leadership qualities emphasised on
behalf of plaintiff, is hardly significant
in this regard.
[60] I note also
that whilst the evidence suggests that plaintiff had considerable
artistic talent, there is no indication that he
had exceptional
talent which would have propelled him to managerial level,
notwithstanding his lack of tertiary education, which,
the evidence
stated, managers typically have. I am therefore unable to find on the
basis of plaintiff’s talent and determination
alone, that he would
have scaled the heights suggested by Hunter.
[61] Hunter’s
ideal career path with “the sky is the limit” scenario, relying
as it does on plaintiff’s talent, enthusiasm
and determination
alone, does not in the circumstances adequately motivate why
plaintiff would have been elevated to managerial level.
Nor does it
take cognisance of the difficult areas in his emotional and
educational profiles and the potential for these to have
impacted on
his career path. It further takes no cognisance of the impact which
affirmative action, a post 1994 reality in South
Africa, might have
had on plaintiff’s career.
[62] Given the
similarities, it is difficult to avoid the perception that the pre
morbid career path favoured by plaintiff was essentially
based on the
model of Shubitz’s career, a comparison for which, there is, from
the evidence, little justification.
[63] In contrast, I
find the career path predicted by Shaw, to be realistic and well
founded, taking overall account as it does of
relevant aspects
pertaining
inter alia
to plaintiff’s profile, the nature of
the advertising industry and affirmative action. Shaw’s comments on
plaintiff’s capacity
for judgment and decision making given the
milieu from which he comes are apposite. In the main, I accept the
career path proposed
by Shaw and the order I propose granting is
based thereon.
[64] With regard to
plaintiff’s post-accident scenario, the evidence overwhelmingly
shows that plaintiff has no residual earning
capacity. Apart from his
past earnings at Ogilvys and by way of a disability grant, the
remaining earnings as referred to by Hunter
were insignificant but
should nevertheless be taken into account.
Contingencies
[65] The case law
reveals that, in the absence of very special considerations,
contingency deductions of 5% and 15% respectively for
the loss of
past and future income can be regarded as the norm. It also revealed
a tendency to raise the 15% to 20% in the case of
young persons where
their pre morbid career paths are very uncertain. See
Nhlumayo v
General Accident Insurance Co of SA Ltd
1986(3) SA 859 (DCLD),
Milns v Protea Assurance Co Ltd
1978(3) SA 1006(C),
Ngubane
v South African Transport Services
1991(1) SA 756 AD,
Krugell
v Shield Versekeringsmaatskappy Bpk
1982(4) SA 95 (TPD),
Shield
Insurance Co Ltd v Booysen
1979(3) SA 953 (A).
[66] Mr Botha
submitted that a contingency deduction of 15% should be applied to
uninjured future loss of earnings and a deduction
of 5% to the claim
for past loss of earnings. In assessing contingencies, he submitted
inter alia
the following should be borne in mind: the fact
that plaintiff maintained a healthy lifestyle before the accident,
the possibility
of his becoming the managing director of a big
company, the possibility of his starting his own company, the fact
that he is not
the average employee, he stood out in his peer group
and possessed a superior verbal I Q which placed him in the top 2.5%
of the
South African population. Given my rejection of the career
path favoured by Mr Botha, I do not accept the contingency deduction
proposed
by him for uninjured future loss of earnings.
[67] Mr Potgieter,
for defendant proposed a contingency deduction of 5% for past income
and 30% on the whole of the uninjured income.
This, he submitted was
warranted for two main reasons. Firstly, after matric plaintiff only
knew he wanted to be somewhere in the
art/creative world, but had a
wide variety of interests and no fixed plans. It may have taken
plaintiff much longer to settle into
a career than the time periods
envisaged in Shaw’s scenario. Secondly, the world of graphic design
/advertising has more than the
usual pitfalls as referred to in
ADvantage magazine and confirmed by Shubitz.
[68] For the
purposes of arriving at the appropriate contingency deduction to be
made from the plaintiff’s future uninjured loss
of earnings, I have
regard to the following positive and negative factors:
68.1 that plaintiff
was a healthy, energetic, determined young man with a superior IQ;
68.2 that he had
artistic talent and a wide variety of interests, including a keen
interest in the advertising industry. He had however
formulated no
career plans at the time of the accident.
68.3 that he had
mediocre matric results in his chosen field of interest
notwithstanding his superior IQ, and that this could similarly
have
given rise to questionable results in his chosen career field,
thereby affecting career progress. This pertains to what I have
referred to as his “educational profile” above
68.4 that
plaintiff’s emotional profile, stemming from his dysfunctional and
troubled family background may not have served him
well in the work
place.
68.5 that 1994 was a
year of transition in South Africa, the economy was not buoyant and
it may well have taken plaintiff a while
to find employment;
68.6 that the
advertising industry is a high risk one, extremely competitive,
difficult to break into, with more than the usual pitfalls.
It might
have offered plaintiff a career with a short life span – perhaps
even only until age 40. Plaintiff’s lack of tertiary
education
would have been a disadvantage. Plaintiff may not have survived the
pitfalls.
68.7 that plaintiff
as a white male would have been disadvantaged by the policy of
affirmative action.
[69] Regard being
had to all of the above I am of the view that a 28% deduction for
contingencies on the whole of the uninjured income
and a 5%
deduction on the past income would be appropriate in all the
circumstances of this case. I accept that plaintiff has no
residual
earning capacity and accordingly make no contingency deduction for
future injured income.
COSTS.
[70] Defendant
opposed plaintiff’s request that the costs of two counsel be
allowed. The complexities of the case, the nature of
the issues, the
inputs by the various and many experts, called by plaintiff, (as
opposed to the two called by defendant), and the
preparation this
entailed, justifies, I believe, the exercise of my discretion in
permitting the costs of two counsel.
The following order
is granted:
Defendant shall
pay to plaintiff the sums of R28,466 and R320 000,00
respectively in respect of past medical expenses and
general
damages, as agreed (40% of R71,166 and R800,000).
The amount already
paid by defendant in terms of the previous court order or
otherwise, should be deducted from the aforesaid
amount, and the
balance (if any) should be paid within fourteen days of the date
hereof, and in the event of such payment not
being made timeously,
defendant shall be liable to plaintiff for the payment of interest
on the balance at the rate of 15,5%
per annum from the fifteenth
day after the date hereof to the date of payment.
In respect of
future expenses contemplated in section 17(4)(a) of the Road
Accident Fund Act, 56 of 1966, defendant shall furnish
plaintiff
with an undertaking in terms of the said section 17(4)(a) in the
total sum of R1,165,181.20.
Defendant shall
pay plaintiff’s taxed costs in the cause on the High Court scale
as between party and party, including any costs
attendant upon the
obtaining of the payment referred to above, which shall include but
not be limited to:
the qualifying
expenses of all expert witnesses in respect of whom plaintiff filed
reports or summaries of evidence to be led
at the trial; and
the costs
consequent upon the employment of two counsel.
5. Payment of the
costs referred to in the aforesaid paragraph shall be effected within
fourteen days of the date of the Taxing
Master’s allocatur or of
settlement of Plaintiff’s party and party bill of costs.
6. Should the
costs referred to above not be paid by due date, Defendant shall be
liable to Plaintiff for the payment of interest
thereon computed at
15,5% per annum from the fifteenth day after the Taxing Master’s
allocatur, alternatively the date of settlement
of Plaintiff’s bill
of costs.
7. The quantum of
plaintiff’s past and future loss of earnings/earning capacity shall
be computed by an actuary, based on the following
assumptions:
7.1 Plaintiff would
have spent much of 1994 preparing for his future career. This may
well have included a course in DTP or courses
in his other fields of
interests. He would have worked casually between 1994-1996 earning
approximately R600-R800 per month whilst
attempting to break into the
advertising industry.
7.2 Plaintiff would
have entered the formal labour market as a junior art director/ light
weight DTP operator/graphic designer on
1 January 1996 at an average
starting salary of approximately R5000 in today’s terms;
7.3 Plaintiff would
have been promoted to the position of art director/medium level DTP
operator/graphic designer as of 1 January
1999 at an average starting
salary of approximately R8500 in today’s terms.
7.4 Promotion to
the level of heavy weight desk top operator/ graphic
designer/creative group head would have followed in 2003 at
an
average starting monthly salary of R18000 in today’s terms.
Plaintiff would have remained at this level until retirement, at
which stage he would have been receiving the maximum salary scale for
that level, being approximately R28000 per month in today’s
terms.
7.5 Receipt of
provident fund, bonuses and/or any other benefits which are
applicable in the advertising industry, as per actuarial
calculation,
as and when plaintiff would have become eligible for such benefits.
7.6 A deduction of
the value of past earnings, such earnings to be supplied to the
actuary in written form and by agreement between
the parties.
8. Upon receipt of
an actuarial calculation by the parties and should the parties fail
to agree as to the meaning and effect of the
actuarial calculation,
any party will be entitled within 5(five) working days of the receipt
of such calculation, and on notice to
the other party, to approach me
in chambers at a time to be arranged with me to present oral argument
as to the further conduct of
the matter.
MEER, J
1
An instrument which measures the level of reduced
consciousness
2
The parties accepted the salary survey figures as
published in ADvantage (January 2005 and January 2006), a much
recognized magazine
in the Advertising Industry.The survey
indicates gross salaries of various positions up to 2006. The survy
incorporates feedback
from five top agencies in Johannesburg and
five in Cape Town.
3
According to the salary tables published in
Advantage magazine, January 2006, this is R3000-R7000 in today’s
terms)
4
R5000 to R12000 in today’s terms as per
Advantage magazine January, 2006