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2024
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[2024] ZAFSHC 256
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Claasen v Road Accident Fund (2053/2023) [2024] ZAFSHC 256 (23 August 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 2053/2023
In
the matters between:
TANIA
JADE CLAASEN
Plaintiff
(ID
No. 9[…])
and
THE
ROAD ACCIDENT FUND
Defendant
(Claim
No. 502[…])
(Link
No. 527[…])
CORAM:
VAN ZYL, J
HEARD
ON:
23 FEBRUARY
2024
DELIVERED
ON:
23
AUGUST 2024
[1]
Ms TJ Claasen (“the plaintiff”) instituted action against
the defendant for damages
arising from the injuries she sustained in
a motor vehicle accident which occurred on 7 September 2021 at
Bloemfontein, Free State
Province.
[2]
The merits of the matter were settled between the parties on the
basis that the defendant is liable
for 100% of the plaintiff’s
proven or agreed damages.
[3]
The parties also settled the issues of general damages, future
medical expenses and costs as per
the order granted by agreement
between the parties on the last day of the trial, 23 February 2024.
[4]
The only remaining issue to be adjudicated is the quantum of the
plaintiff’s claim in respect
of past and future loss of
earnings/earning capacity.
[5]
Adv De la Rey appeared on behalf of the plaintiff and Ms Gouws on
behalf of the defendant.
Witnesses
and reports:
[6]
During the trial, the following experts testified on behalf of the
plaintiff and their respective
medico-legal reports were subsequently
accepted into evidence:
1.
Dr C Barlin (Orthopeadic Surgeon).
2.
Ms A Mdabambi (Occupational Therapist).
3.
Ms R Pretorius (Industrial Psychologist).
[7]
In addition to the aforesaid, the actuarial report by G Mellet of SNG
Argen was also accepted
into evidence by agreement between the
parties, subject to the proviso that the parties will be allowed to
argue thereupon as they
deem fit.
[8]
The plaintiff was also called as a witness.
The
evidence:
Dr
Barlin:
[9]
Dr Barlin testified that his assessment of the plaintiff occurred on
16 August 2022. As
a result of the accident the plaintiff
sustained the following injuries:
1.
Cervical spine injury.
2.
Lumbar spine injury.
3.
Right arm injury.
4.
Left elbow injury.
[10]
The plaintiff initially went to her general practitioner with
cervical spine pain and was managed conservatively
with analgesics.
[11]
Because of ongoing neck pain and new-onset paraesthesia in her right
upper limb by way of pins and needles
in her right arm, the plaintiff
was admitted to Mediclinic Hospital, Bloemfontein, on 17 September
2021 for further examinations
by way of MRI scans. She was
subsequently diagnosed with cervical radiculopathy. She was
treated conservatively with a neck
brace and was discharged on 20
September 2021. On 23 September 2021 she was again admitted for
ongoing symptoms and was placed
on cervical traction.
[12]
On 27 September 2021 the plaintiff underwent surgery by way of an
anterior decompression fusion. The
surgery was successful with
no complications and the plaintiff was discharged on 1 October 2021.
[13]
She continued having paraesthesias in her right hand and subsequently
underwent nerve conduction studies
and then a right carpal tunnel
release approximately six weeks later.
[14]
With regard to the plaintiff`s current symptoms, being the symptoms
she was experiencing when Dr Barlin assessed
her, Dr Barlin recorded
as follows in his report:
“
She
complains of persistent pain in her neck, back, right arm and hand.
She struggles to look to the right side, sleep on
her sides and
experiences a lot of migraines.
The
lower back is painful when sitting for extended periods of time and
painful when laying down. Tremoring of her right hand,
loss of
grip, numbness and pins and needles are constant.”
[15]
In conclusion, Dr Barlin recorded the following, which opinions he
also expressed during his
viva voce
evidence:
“
9.3
She continues to experience neck pain and stiffness, right arm
neurological symptoms as well as
lower backache.
9.4
Her neck and lower backache are likely to persist requiring
continuing physiotherapy, analgesics
and anti-inflammatories.
There is a 5% chance that she will require extension of the cervical
fusion.
9.5
I do not believe that she will be able to return to work as a Head
Chef which require a
great deal of physical work. I defer to
the opinion of the Occupational Therapist and Industrial Psychologist
in this regard.”
[16]
Dr Barlin also testified that the plaintiff had a tremor which is
connected to her neck injury. Her lower
back pain is probably also
connected to her neck injury and constitutes a deferred pain. She
will have difficulty to pick up items
heavier than 2 to 3 kilogram.
[17]
Dr Barlin opined that the plaintiff will very likely continue to
experience pain when walking, standing and
sitting for extended
periods of time and also when sleeping. As a day progresses, the pain
will probably get worse.
[18]
During cross-examination Dr Barlin testified that although the usual
period for maximum medical improvement
is 18 to 24 months, in this
particular instance the likelihood of significant improvement is
small, considering that a fusion had
already been done without
success in combatting the pain. He further explained that with
a recovery after a neck fusion,
90% of the improvement would have
already occurred by the time he examined the plaintiff.
The
plaintiff:
[19]
The plaintiff resides in Bloemfontein, is married and has two
children. She was born on 15 August 1992.
She studied at
the Food and Beverage Institute, Bloemfontein, to become a Chef.
She obtained her diploma and then went to
America to do her practical
training, which she did at the Ritz Carlton Hotel, Florida. She
remained there for a year.
[20]
When she returned to South Africa, she finished her further training
and studies.
[21]
She obtained employment in 2014 at the St. Andrews Hotel in
Johannesburg for about a month as Chef de Parte.
[22]
She thereafter obtained a temporary appointment at Potterskloof Game
Reserve, whilst an employee was on maternity
leave. There she
was the Head/Executive Chef for three to four months.
[23]
After that she was appointed as Chef De Parte at Anta Boga Boutique
Hotel in Bloemfontein, which position
she occupied for three years.
[24]
The plaintiff then received a better offer from Fedics. At Fedics she
occupied the position of Executive
Regional Chef. Within Fedics she
reached out to NRC at the hospital where she prepared and cooked food
for the dialysis patients.
Fedics was not satisfied that she
continued doing that whilst in the employment of Fedics. She
therefore resigned from Fedics
after approximately a year.
[25]
Thereafter she concentrated on the business she was running at NRC
and was therefore self-employed. She cannot
remember for how long she
was self-employed, but ceased the business when it turned out not to
be financially viable.
[26]
At a later stage her husband and she moved to Rustenburg for purposes
of his career. He is a Clinical Technologist.
She was unable to
obtain employment as a Chef in Rustenburg, whereupon her husband’s
boss offered her work as a Receptionist
at the same medical facility
as where her husband was employed. In the meantime, she fell pregnant
and it was a very difficult
pregnancy with her being in and out of
hospital. Eventually her husband and she decided that she would
rather be concentrating
on a healthy pregnancy instead of working any
further.
[27]
After three years the family moved back to Bloemfontein. She
started job hunting again for a position
as Chef when she noticed an
advertisement by the Free State Residential Centre, where she was
successful in obtaining the position
of Head Chef.
[28]
In the said position she was responsible for the whole kitchen.
She had an assistant whom she had to
train and explain what to do.
The plaintiff had to prepare three meals per day for approximately
150 people at a time and she also
had to dish up the food. She
furthermore had to make platters for the staff for teatime.
When the cleaner went off duty,
she had to mop the floors and do the
cleaning herself. At that stage she was receiving R6 000.00 per
month. She explained
that it was a huge salary drop to what she
was used to as Chef previously, but decided to rather work for the
said salary than
being unemployed. She testified that she loved her
work. However, she was yearning to become the kitchen manager at Free
State
Residential Centre, but which position was filled at the time.
[29]
She was working in the aforesaid capacity when the accident occurred
on 7 September 2021. After the accident
she was hospitalised and
eventually she was approximately three months away from work.
When she returned to work, she had
so much pain in her neck and her
arm, together with pins and needles and lameness, that the doctor
decided to book her off for
longer. When she again returned to
work, the doctor provided her with a letter that she should perform
light duties.
However, there was no light duties available in
the kitchen. Her manager told her to take the day off. He
also told
her that she should resign, but she was not willing to
resign since she felt that it was not her fault that she could not
perform
her duties. Eventually there were different meetings
held and the plaintiff and the employer entered into a mutual
separation
agreement. In terms thereof she did not receive any
further money from the Centre.
[30]
She explained that her duties in the kitchen,
inter alia
,
entailed that she had to be able to carry 50 kg of flour, as well as
big, massive pots filled with food, which she was unable
to do after
the accident. Even dishing up was problematic for her.
She was unable to cope with the duties and obligations
which the
position required.
[31]
The plaintiff gave an explanation of the history of her injuries
since she first went to a general practitioner
up to the point where
C5 and C6 in her neck were fused and she also had carpal tunnel
surgery to her right hand. Her evidence
in this regard
corresponded with the evidence presented by Dr Barlin. She also
testified about one night, before the fusion
was done, when she was
sleeping and attempted to turn in the bed, but she was completely
paralyzed and could not move at all.
[32]
With regard to the pain the plaintiff experienced before her
operations, she testified that she had very
bad pain in her neck, her
shoulder and her arm, which pain extended to her fingers. The
fingers of her right hand were also
numb. She also struggled to
walk after the night when she experienced paralysis.
[33]
After the operations the plaintiff could walk, but very slowly.
She was also physically unable to play
with her baby daughter.
[34]
Currently, despite the lapse of time, the plaintiff is still
suffering tremendously with a lot of pain in
her neck which radiates
down into her lower back. She also has a tremor which influences her
daily tasks. She used the example
that when she needs to write
down a grocery list and she has to look downwards, the tremor gets
even worse and she develops a spasm
in the palm of her right hand.
Whenever she tries to carry a heavy item, her hand also goes into a
spasm to the extent that
she is unable to open her hand.
[35]
The plaintiff testified that she did not suffer from any of these
issues prior to the accident. Despite
the fact that she was
also involved in an earlier motor vehicle accident in 2010, that she
had a very difficult birth of her child
in 2021 and that she had also
undergone a lumber punch previously, none of these had any influence
on her health, her functioning
or her working ability.
[36]
Since she left her employment at Free State Residential Centre, the
plaintiff has been actively seeking work
as a Receptionist. She
estimated that she has since February 2022 up to now done more than
100 applications, sometimes at
14 to 15 different places a day,
reading the requirements and knowing that she does not have the
required certificate in administration
or the required two to three
years’ experience, but she still applied, hoping that somebody
will grant her an opportunity.
However, she has not even been
invited to an interview. She testified that she, however, will
continue to so apply.
[37]
The plaintiff testified that, according to her, the chances of her
obtaining employment as a Receptionist
are very low. She does
not have the required qualifications, nor the required experience.
She handed out her curriculum
vitae at two different employment
agencies, but also without success. She also contacted her
lecturer and spoke to students
to ascertain whether one of them was
maybe aware of possible employment for her, but with no success.
[38]
With regard to monthly income, she testified that when she was a Head
Chef at Potterskloof, she earned R15 000.00
per month, without
overtime.
[39]
Considering the lapse of time and how she would have progressed in
her position as a Chef, she estimates
that a monthly salary of
R20 000.00 per month would now be reasonable. She dearly
wanted the appointment as kitchen
manager at the Free State
Residential Centre where she probably would have earned between
R15 000.00 and R20 000.00 per
month.
[40]
The plaintiff testified that her unemployment has put a great deal of
negative pressure, including financial
pressure, on her marriage.
Cooking is her passion. She loved it when she had three hours
to cook for 150 to 200 people, to
experience the adrenaline rush that
goes along with it. When testifying about this, she became
emotional in court and said
“
I will never get that back
”.
[41]
According to the plaintiff her injuries are getting worse and not
better. She has gone for a few pain
blocks, which lasts for
less than three months, but at least after a pain block she
experiences pain which she can bear.
Other times she is
experiencing constant pain, especially when bending her neck and
turning her neck. To her it feels that
it is constantly getting
worse.
Cross-examination
of the plaintiff:
[42]
The plaintiff was asked whether she would be able to function as a
Rceptionist, to which she responded that
based on her previous
experience of three months, she would be able to do so. I then
enquired from her whether she will physically
be able to do the
work. She answered that sitting for long periods of time gives
her pain and so does standing for too long.
She can’t
write for too long either. Although she is computer literate,
she has not typed on a personal computer since
the accident and does
not know what physical impact that may have upon her. She
testified that she will, however, attempt
try it if only she gets an
opportunity to do it. Currently she is doing everything on her phone,
instead of on a personal computer.
[43]
Reference was made to the evidence of the Industrial Psychologist who
testified that the plaintiff would
have been able to progress in her
career had it not been for the accident. However, the question
was posed to the plaintiff
that it seems that it would not have been
so easy for her to progress in her career as a Chef in Bloemfontein
as such. The
plaintiff responded that before she took up the
employment at Free State Residential Centre, there was employment
available at
Sun International in Bloemfontein. However, they
only took in night shift employees at the time. Because her
husband
is a Clinical Technologist at the hospital and also has to
work night shift from time to time, she realized that they can’t
both work night shift. That is the reason why she took the
employment with Free State Residential Centre where her hours
were
from 06h30 to 18h00, seven days a week, but then she was off for
seven days, which granted her the opportunity to spend time
with her
children.
[44]
When asked whether she was bound to Bloemfontein for employment
purposes, she confirmed same. She explained
that she receives a
lot of assistance from her mother in law, her parents and her
husband’s career is in Bloemfontein.
[45]
It was further posed to the plaintiff that Bloemfontein does not
present as many opportunities for her to
have progressed with her
career as a Cook or a Chef as postulated by the expert. She
testified that at the time of the accident
she was still very young
and her experience may not have been enough for a well-known
establishment to hire her as Executive Chef,
but with time and
experience she would have worked herself up in her career.
[46]
In re-examination she testified that she has no other option but to
seek for work, since she is financially
compelled to do so.
Ms
A Ndabambi: Occupational Therapist:
[47]
Ms Ndabambi, an Occupational Therapist, was called as an expert
witness on behalf of the plaintiff. Her
report is dated 31
August 2022.
[48]
Ms Ndabambi, in her evaluation, took into consideration what was
stated by Dr Barlin in his report.
[49]
She explained that her evaluation pertained to the functional
capacity of the plaintiff in relation to her
job performance.
[50]
At paragraphs 9.8 to 9.10 of her report Ms Ndabambi stated as
follows, which opinion she also repeated in
her
viva voce
evidence:
“
9.8
Current work capacity:
Mrs Claasen tested capable of engaging in sedentary work. Her
limitations are related to residual neck pain and right arm
neurological deficits such as pins and needles. She also
presented with weakness of her right hand with associated tremors.
She is also limited in prolonged sustained postures. She did
not fully meet the demand of light work. She is unsuited
to
engage in medium and heavy occupations.
9.9
Job match:
Mrs Claasen’s current physical abilities
do not meet/match the demands of her own pre-accident job as Head
Chef
. She is unsuited to engage in light and medium occupations.
She is unsuited to engage in manual related tasks such as load
handling,
trunk rotation, elevated work and prolonged standing
demands. She is not suited to work in her pre-accident capacity
as a
Head Chef, cook, assistant chef or any similar role.
…
9.10
Alternative and future occupations:
With optimal successful
intervention and vocational guidance, Mrs Claasen is likely to be
suited to engage in sedentary to occasional
aspects of light work.
She will benefit from reasonable accommodations based on the job she
will be doing. She should
refrain from tasks which require
prolonged sustained postures such as sitting, standing, stooping and
elevated work. She
will also benefit from rest breaks. It
is unlikely that she will be suited or meet the demands of medium
work due to the
accident related injuries. She should thus
refrain from engaging in medium and heavy occupation.
…
.
However, should her neck
symptoms and associated radiculopathy of her right upper limb worsen
she is likely to find herself well
suited for sedentary to half day
work in the open labour market. She will continuously benefit
from reasonable accommodations
in the work place.”
[51]
It was put to the witness that her evidence that the plaintiff has
never been employed in a sedentary role
before, is incorrect, since
she was a receptionist previously. Ms Ndabambi responded by
saying that the plaintiff’s
stint as a receptionist was very
brief. Further, the explanation the plaintiff gave to her
regarding the responsibilities
she had as a receptionist, was to the
effect that it was not 100% sedentary, since she also performed some
light work. She,
in between sitting, walked around, carrying
and storing files.
[52]
Ms Ndabambi further testified that since the plaintiff cannot sit all
the time due to her physical limitations,
she will be an unequal
competitor in the open market.
Ms
R Pretorius: Industrial Psychologist:
[53]
Ms Pretorius, an Industrial Psychologist, was also called by the
plaintiff as an expert witness. She
prepared two reports which
were presented in evidence. The date of the first report is 7
September 2022 and the date of the
addendum report is 10 October
2022.
[54]
She testified that the purpose of her reports is to determine the
extent and impact of the accident, which
took place on 7 September
2021, its related injuries and
sequelae
thereof, on the
plaintiff’s employability and earning capacity.
[55]
In compiling her report she had various documents which she took into
consideration in her opinion provided,
including,
inter alia
,
the medico-legal reports of Ms Ndabambi, the Occupational Therapist
and that of Dr Barlin, the Orthopaedic Surgeon.
[56]
With regard to her pre-accident health, the plaintiff informed Ms
Pretorius that she had previously been
involved in motor vehicle
accident in 2010 as a passenger. However, she did not sustain
any serious injuries in this accident
and she was not hospitalized.
She also underwent a lumber punch in 2018. Nevertheless, and
overall, the plaintiff stated
that she was in good health at the time
of the accident.
[57]
In her report Ms Pretorius dealt with the plaintiff’s
pre-accident employment history, which in essence
corresponds with
the plaintiff’s evidence in this regard and I am consequently
not going to repeat same.
[58]
Ms Pretorius obtained collateral information regarding the
plaintiff’s pre-accident employment by means
of a conversation
with Ms Koekemoer, who was employed in the position of Kitchen
Manager at the Free State Residential Centre.
Regarding her
pre-accident job performance, Ms Koekemoer stated that she had no
problems with the performance of Ms Claasen, she
was good and she got
well on with the residents. Ms Koekemoer rated the plaintiff’s
job performance as “good”.
Regarding promotions, Ms
Pretorius stated as follows in her report at paragraph 6.7.1.4:
“
Regarding
promotions, Ms Koekemoer stated that Ms Claasen had enquired
regarding Ms Koekemoer leaving her employment and whether
she could
perhaps apply for her position, however Ms Koekemoer stated that she
did not aspire to leave and Ms Claasen would have
still been employed
in the same position as Cook, had the accident not occurred.”
[59]
Ms Koekemoer stated that the retirement age at the Centre is 60
years, however one can work until 65 years
old should one`s health
permits.
[60]
With regard to the plaintiff’s
pre-accident employment
projection
, Ms Pretorius stated in her report, which evidence she
also repeated during her
viva voce
evidence, as follows:
“
6.8.2
The authors are of the opinion that had the accident not occurred, Ms
Claasen would have continued working in
the position of a Cook for
her employer at the time of the accident, Vrystaat Nasorgsentrum.
6.8.3
The authors consider that there were no promotional opportunities for
Ms Claasen with Vrystaat Nasorgsentrum
as per collateral employment
information. Further considered were her age at the time of the
accident (29 years) as well
as her various qualifications, the
highest being a diploma. Taking these factors into account, it
is opined that she would
have sought out alternative employment in
the position of a Cook which would have offered Ms Claasen
opportunities to progress
further in her career. It is
therefore assumed that she had not reached her career or her earnings
pinnacle at the time she
encountered the accident in question.
It is further assumed that
she would have reached her career and
her earnings pinnacle between the ages of 45 and 50 years
,
perhaps in the position of a Senior Cook, or in a similar position”.
[61]
With regard to the plaintiff’s
pre-accident earnings
projection
, Ms Pretorius testified and stated in her report as
follows:
“
6.10.2 The authors
opined that Ms Claasen would have progressed her career and her
earnings further, to earn in-line with a 75 percentile
for Cooks
between the ages of 50 and 54 in the formal sector, i.e. R241 573.00
per annum, 2021 terms, as per the Analytics earnings
research.
This would have formed her career and earnings pinnacle between the
ages of 45 and 50 years.
6.10.3 The
authors opine that Ms Claasen would thereafter have received normal,
annual inflationary increases until
retirement.”
[62]
For purposes of the aforesaid, Ms Pretorius made use of figures from
Analytico earnings research for Cooks,
2021 terms. It indicates
that it is for “
Cooks plan, organize, prepare and cook
foodstuffs in hotels, restaurants and other public eating places, on
board ships, on passenger
trains and in private households
”.
In the diagram reflected in her report, the age percentiles for the
age of 50 to 54 years old, reflect the following
figures:
25
th
percentile
R61 360
50
th
percentile
R111 503
75
th
percentile
R241 573.
[63]
Regarding the plaintiff’s pre-accident retirement, it was
assumed by Ms Pretorius that the plaintiff
would have worked until
the age of 67.5 years. The authors opined that she would have
retired working for a different employer
than Free State Residential
Centre.
[64]
With regard to the plaintiff’s
post-accident future earnings
projection
, Ms Pretorius made provision for
two scenarios
.
[65]
The
first scenario
is that the plaintiff will re-enter the
labour market in the position of a Receptionist or in a similar
position. Ms Pretorius
opines that there is a 50% chance that
this scenario may occur. This scenario is projected as follows
in the addendum report:
“
4.7.1.1 It is
assumed that Ms Claasen may re-enter the labour market in the
position of a Receptionist, after approximately 22 to
24 months from
the date of this report, for calculation purposes.
4.7.1.2 Upon
re-entering the labour market as described above, she will earn
in-line with the 25
th
percentile for Receptionists in the
formal sector, i.e. R72 416.00 per annum to 2022 terms, as per the
Analytico earnings research.
4.7.1.4 It is
opined that Ms Claasen will receive normal, annual inflationary
increases until retirement.”
[66]
The
second scenario
is to the effect that the plaintiff would
remain unemployed. Ms Pretorius opined that there is also a 50%
chance that this
scenario may occur. In this regard Ms
Pretorius opined Ms Claasen may not re-enter the labour market and
therefore not generate
work-related earnings for the rest of her
life.
[67]
With regard to the aforesaid first scenario, Ms Pretorius also opined
that the plaintiff will experience
difficulty securing employment in
the position of a Receptionist, periods of unemployment are
foreseen. She therefore recommended
an appropriate, higher
post-accident contingency deduction to be considered.
[68]
The scenarios were postulated on a post-accident retirement age of
approximately 67.7 years.
[69]
Ms Pretorius testified and confirmed that the post-accident projected
career on the basis of a 50/50% is
reasonable given the background
information she has at her disposal.
Cross-examination
of Ms Pretorius:
[70]
Ms Pretorius was asked why she postulates a 50/50% chance between the
two scenarios, and not for instance
a 70/30% postulation. Ms
Pretorius responded that it is difficult to determine such a
percentage, since it is not an exact
science. She, however,
awarded an equal likelihood to both scenarios since the plaintiff has
not previously worked in a sedentary
position and she does not have
any qualifications in that regard. In the open labour market a
person with the necessary experience
and qualifications will enjoy
preference by a potential employer. Ms Gouws then advised Ms
Pretorius that the plaintiff has
indeed previously worked as a
Receptionist at a medical practice for a period of three months and
also explained to Ms Pretorius
what the plaintiff’s obligations
entailed in that position. After consideration of this fact, Ms
Pretorius testified
that in the circumstances she would say that the
impact of that experience may perhaps up the possibility of obtaining
sedentary
employment in future from 50% to 55%. She, however,
still foresees that the plaintiff will experience difficulty in
obtaining
such employment, considering her limitations. The
plaintiff still has a 45% chance of remaining unemployed, because of
her
limited experience and her lack of an applicable qualification
such as a certificate in administration. She has severe limited
work experience in a sedentary position, since it is vastly different
from the work which she performed as Cook. She therefore
remains at a disadvantage compared to someone who has more
experience.
[71]
Ms Pretorius was further asked how she can project that there would
have been an increase of income pre-accident
and that the plaintiff
would have, proverbially speaking, climbed the corporate ladder.
Ms Pretorius testified that considering
the plaintiff`s past
experience she does believe that the plaintiff would have developed
within her career and would have progressed
had it not been for the
accident. She opined that considering the age of the plaintiff
at the time, being 29 years of age,
she cannot see that the plaintiff
would not have progressed between the age of 29 years and 45 years.
[72]
With regard to the plaintiff’s pre-accident earnings projection
as set out at paragraph 6.10.2 of the
report of Ms Pretorius, Ms
Gouws enquired from her why she did the projection on the 75
th
percentile for Cooks, which is the highest spectrum of earnings.
Ms Pretorius testified that because of her tertiary qualifications,
her work experience, the fact that she has the reputation of being a
good worker and a good performer as a Cook at her previous
employer
and also the fact that for someone of her age, she was earning a
relatively low income at the time of the accident, she
progressed her
to the 75
th
percentile.
[73]
When asked how much Chefs in Bloemfontein earn, Ms Pretorius
indicated that she does not know. When
it was put to her that
the opportunities for Chefs in Bloemfontein are restricted, Ms
Pretorius did not agree and referred to the
work history of the
plaintiff in respect of positions she previously obtained and
occupied in Bloemfontein.
[74]
Ms Pretorius was cross-examined on why, for purposes of the
post-accident first scenario, namely should the
plaintiff re-enter
the labour market in the position of a Receptionist or in a similar
position, the 25
th
percentile was postulated. Ms
Pretorius testified that the said percentile is the lowest spectrum
of earnings and that that
is being used because the plaintiff has
been absent from the labour market for quite some time, she would be
entering the labour
market in a position where she has very limited
experience and therefore she would have to start at the bottom of the
occupation,
basically at entry level. The absence from the
labour market to which she refers, is the postulation of one to two
years
to obtain a position of a Receptionist or similar position.
She testified that even taking into consideration the experience
and
exposure which the plaintiff previously had as a Receptionist, it
would not affect the opinion of Ms Pretorius that the 25
th
percentile should be used and not the 50
th
percentile.
The earnings for the 50
th
percentile is R139 482.00.
Ms Pretorius testified that with more experience and with
opportunities to have proven herself,
she would eventually reach that
percentile, but it is unrealistic and improbable that she would jump
from no income to earnings
of R139 482.00.
[75]
Ms Pretorius was asked what the percentage chance is that the
plaintiff would have, pre-accident, again obtained
employment in the
formal sector. Ms Pretorius testified that it is highly likely
because she has previously worked in that
sector and she has
experience in the formal sector. She therefore testified that
one can safely assume that the percentage
chance is above 50%.
[76]
During re-examination Ms Pretorius confirmed that considering that
the plaintiff only has three months’
experience as a
Receptionist out of a period of 7 years, the post-accident scenario
cannot be postulated at higher than 25%.
[77]
In re-examination Ms Pretorius was also requested to give clarity on
the issue of the age bracket of 50 –
54 years, but then
postulating it in the age bracket of 45 – 49 years. She
testified that 50 - 54 is the age bracket
she used in terms of the
scales. She has, however, also considered other scales, such as the
Patterson Corporate Scales and Koch’s
Scales to have come to
the conclusion to use the earnings of the 50 - 54 years bracket for
purposes of the scales. Mr De
La Rey then pointed out to her
that the actuary did his calculations on the basis that she would
have reached her career pinnacle
at the age of 48 years, which Ms
Pretorius confirmed to be correct.
[78]
During further re-examination Ms Pretorius testified that she based
her pre-accident projections on factual
evidence. Her
post-accident postulations she based on the report of the doctor, the
Occupational Therapist, the plaintiff’s
lack of relevant
experience, her lack of qualifications and postulated it as best as
it is going to get.
[79]
Ms Pretorius also testified in re-examination that the pre-accident
postulation is based on the
income of a Cook and not that of a Chef.
Considering that the plaintiff has previously been a Head Chef and a
Chef De Parte,
the pre-accident scenario is actually very
conservative, since it postulates the lower income of a Cook as
opposed to that of a
Chef.
[80]
Lastly, in her re-examination, she confirmed that she concedes her
initial 50/50% scenario to a 55/45% scenario
due to the fact that she
did not have knowledge of the plaintiff’s previous experience
as a Receptionist, albeit very limited
experience.
Evaluation
of the expert evidence:
[81]
Ms Gouws referred in her heads of argument to the judgment of
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA) at paras [22] –
[23]:
[22]
It is trite that an expert witness is required to assist the court
and not to usurp the function of the court. Expert witnesses
are
required to lay a factual basis for their conclusions and explain
their reasoning to the court. The court must satisfy itself
as to the
correctness of the expert's reasoning. In
Masstores
(Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd and Another
2016
(2) SA 586 (SCA)
([2015] ZASCA 164) para 15, this court
said:
'Lastly,
the expert evidence lacked any reasoning. An expert's opinion must be
underpinned by proper reasoning in order for a court
to assess the
cogency of that opinion. Absent any reasoning the opinion
is inadmissible.'
In
Road
Accident Appeal Tribunal and Others v Gouws and Another
2018
(3) SA 413
(SCA)
([2018]
1 All SA 701
;
[2017] ZASCA 188)
para 33, this court said:
'Courts
are not bound by the view of any expert. They make the ultimate
decision on issues on which experts provide an opinion.'
See
also
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188 (SCA)
([2002]
1 All SA 384)
para 34.
[23]
The facts on which the expert witness expresses an opinion must be
capable of being reconciled with all other evidence in the
case.
For
an opinion to be underpinned by proper reasoning, it must
be based on correct facts
. Incorrect facts militate against
proper reasoning and the correct analysis of the facts is paramount
for proper reasoning, failing
which the court will not be able to
properly assess the cogency of that opinion. An expert opinion which
lacks proper reasoning
is not helpful to the court. … (My
emphasis)
[82]
In
Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung Mbh
1976 (3) SA 352
(A) the following principles were stated at 371:
“
As
I see it, an expert's opinion represents his
reasoned
conclusion based on certain facts on
data
,
which are either common cause, or established by his own evidence or
that of some other competent witness
.
Except possibly where it is not controverted, an expert's bald
statement of his opinion is not of any real assistance.
Proper
evaluation of the opinion can only be undertaken if the process of
reasoning which led to the conclusion, including the premises
from
which the reasoning proceeds, are disclosed by the expert.”
(My emphasis)
[83]
Ms Pretorius was cross-examined at length and in depth by Ms Gouws.
The most controversial issues that were raised with
her by Ms Gouws,
were the 75
th
percentile postulation pre-morbid, the 25
th
percentile postulation post-morbid and the issue regarding the
calculations based on the 45 – 49 years’ and the 50
–
54 years` age brackets. In my view Ms Pretorius duly explained her
opinions in respect of those issues, which explanations
were based on
factual evidence which cannot be said to be incorrect or unreliable.
In fact, when Ms Pretorius was made aware that
the plaintiff had in
fact previously occupied the position of Receptionist, which she was
not previously aware of, she immediately
conceded that her 50/50%
chance for the two possible post-morbid scenarios should be rectified
to be 55/45%. Considering that it
was very limited experience of 3
months, I`m actually of the view that Ms Pretorius was very lenient
in her concession. However,
the important fact is that after the
“new” facts were brought to her attention, Ms Pretorius
did not attempt to persist
with her original postulation.
[84]
The other issue raised by Ms Gouws in cross-examination and in her
arguments, is the alleged restricted opportunities
for Chefs/Cooks in
Bloemfontein. Not only was that duly answered and negated by Ms
Pretorius in her responses thereto in cross-examination,
but, in my
view, the legal basis of that approach is incorrect. As correctly
pointed out by Mr De la Rey in his heads of argument,
a claim for
loss of earnings is premised on a plaintiff`s loss of earning
capacity and not his/her physical loss of income. In
Santam
Versekeringsmaatskappy Beperk v Byleveldt
1973 (2) SA 146
at
50 C - D it was stated as follows in Afrikaans:
“
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.”
[85]
I have duly considered the evidence, including the cross-examination,
of the expert witnesses by Ms Gouws.
In my view all three experts,
most importantly Ms Pretorius, based their opinions on the correct
facts. The facts as testified
to by the plaintiff, were corroborated
by the reports of the experts in all material respects. The experts,
in their reports and
in their
viva voce
evidence, duly
explained their reasoning and the basis/grounds for their reasoning.
Their opinions and conclusions are therefore
based on established
facts and based on their objective expertise. There is no reason for
me not to accept their evidence and expert
opinions.
Contingencies
and calculations:
[86]
It is trite that it is for the court to determine the percentage of
contingencies to be applied in a matter
such as this.
[87]
Contingencies discount the vicissitudes of life and it is a method
used to arrive at fair and reasonable
compensation. The question of
contingencies was dealt with in
[zRPz]
Southern
Insurance Association Ltd v Bailey N.O.
1984 (1) SA 98
(A) at
113G and 116G – 117A:
“
Any
enquiry into damages for loss of earning capacity is of its 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 to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
…
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is ‘tied down by inexorable actuarial
calculations’. He has ‘a large discretion to award what
he considers right’ (
per
HOLMES
JA in
Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A)
at 614F). One of the elements in exercising that
discretion is the making of a discount for ‘contingencies’
or the
‘vicissitudes of life’. These include such matters
as the possibility that the plaintiff may in the result have less
than a ‘normal’ expectation of life; and that he may
experience periods of unemployment by reason of incapacity due
to
illness or accident, or to labour unrest or general economic
conditions. The amount of any discount may vary, depending upon
the
circumstances of the case. See
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A)
at 114 - 5. The rate of the discount cannot of
course be assessed on any logical basis: the assessment must be
largely arbitrary
and must depend upon the trial Judge's impression
of the case.
…
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz v
Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
‘
It
is a mistake to suppose that it necessarily involves a 'scaling
down'. What it involves depends, not on arithmetic, but on
considering
what the future may have held for the particular
individual concerned... (The) generalisation that there must be a
'scaling down'
for contingencies seems mistaken. All 'contingencies'
are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff
might have had prospects or chances of advancement and
increasingly remunerative employment. Why count the possible buffets
and
ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have
balanced or even outweighed the risk of bad.’”
[88]
In the judgment of
Dlamini v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646 (3 September 2015) at paras [30] to
[31] the court dealt with and applied some guidelines referred
to by
Koch in The Quantum Year Book:
“
[
30] Koch
refers to the following as some of the guidelines as regards
contingencies:
‘
Normal
contingencies’ as deductions of 5% for past loss and 15% for
future loss.
‘
Sliding
scale’: 1/2 % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age and relies
on Goodall
v President Insurance
1978 (1) SA 389.
‘
Differential
contingencies’ are commonly applied, that is to say one
percentage applied to earnings but for the accident,
and a different
percentage to earnings having regard to the accident.
[31] When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so
with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position
of the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse
contingencies have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred.”
[89]
The actuarial report reflects two scenarios of calculations as per
the evidence of Ms Pretorius. The parties
are
ad idem
that the
quantification of the plaintiff`s loss of earnings/earning capacity
should be based on scenario 1. I agree. However, the
said calculation
is to be done subject to what is stated hereunder.
[90]
Pertaining to the plaintiff`s
pre-morbid past loss of earnings and
her post-morbid past loss of earnings
, the parties both suggested
that the “usual”
5%
contingency is to be deducted
in respect of both. I am in agreement that it will be fair and
reasonable.
[91]
With regard to the plaintiff`s pre-morbid future loss of
earnings, Ms Gouws suggested that a contingency of 50% should
be
deducted. This submission is based on her submission that the 75
th
percentile calculation is unsubstantiated and too high and further
based on the issue in respect of the 45 – 49 years’
and
the 50 – 54 years’ age brackets. As indicated earlier, I
accept the explanation by and the opinion of Ms Pretorius
in respect
of both issues. I therefore agree with the submission of Mr De la Rey
that a contingency deduction of 50% is flawed.
[92]
When the sliding scale calculation is used as basis, it constitutes a
pre-morbid future loss of earnings
contingency of
17%
,
calculated on an expected retirement age of 65 years. This is the
submission by Mr De la Rey and with which I am in agreement
as being
fair and reasonable in the circumstances.
[93]
With regard to the
post-morbid future earnings
of the
plaintiff, Ms Gouws submitted that a 30% contingency deduction should
be made. She advanced no reasons in support
of this submission.
Mr De la Rey, on the other hand, suggested a contingency deduction of
45%
based on the evidence of Ms Pretorius and the concession
she made, referred to earlier. I am in agreement with Mr De la Rey
and
consider it to be a fair and reasonable contingency deduction in
the relevant circumstances.
[94]
Furthermore the calculation in scenario 1 of the actuarial report is
to be amended to be calculated up to
a retirement age of 65 years.
There was no evidence presented to justify a later retirement age.
[95]
Lastly, the actuary calculation was done based on a calculation date
of 1 December 2022. The
date of calculation is to be updated to 1
August 2024.
[96]
I intend making an order based on the aforesaid findings.
Costs:
[97]
An order of costs has already been made in the Court Order dated 23
February 2024. However, should there
have been additional costs
incurred since the date of the said Order in respect of the
adjudication of the loss of earnings/earning
capacity, the proposed
Draft Order should also make provision for those costs.
.
Order:
[98]
I consequently make the following order:
1.
It is declared that an updated actuarial calculation is to be
drafted pertaining to the plaintiff`s loss of earnings
as
a result of the motor vehicle accident which occurred on 7 September
2021, for purposes of which the plaintiff`s attorney is
directed to
forthwith request the plaintiff`s actuary to perform such a
calculation in accordance with my relevant findings in
this judgment,
namely:
1.1
The actuarial principles and assumptions, as well as the other
postulations
as applied in the report of Mr Mellet, dated 16 November
2022, scenario 1, as reflected at p. 6 – p. 7 of the report,
are
to be applied again, subject to the following:
1.1.1 The following
contingencies are to be deducted:
1.1.1.1 Pre-morbid past
loss of earnings – 5%
1.1.1.2 Post-morbid past
loss of earnings – 5%
1.1.1.3 Pre-morbid future
loss of earnings – 17%
1.1.1.4 Post-morbid
future loss of earnings – 45%
1.1.2 The
retirement age is to be 65 years.
1.1.3 The
calculation is to be done as at 1 August 2024.
2.
Leave is granted to the parties to approach Van Zyl, J in chambers,
once the aforesaid calculation
is received, with a draft order as
agreed upon between the parties in order to obtain an order for the
payment by the defendant
to the plaintiff of the amount calculated as
aforesaid, together with interest, costs (if any in addition to the
costs previously
ordered) and related issues.
3.
The aforesaid costs are also to include the
additional costs for obtaining the newly calculated and updated
actuarial report, as
well as any consequential costs incurred in
order for it to be made an order of Court.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv
H.E. de la Rey
Instructed
by:
Peyper
& Botha Attorneys Inc.
BLOEMFONTEIN
E-mail:
law@pbainc.co.za
pieter@pbainc.co.za
On
behalf of the defendant:
Ms. J
Gouws
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
E-mail:
johandig@raf.co.za