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[1] The app ellant’s claim against the respondent emanates from a collision that
occurred on 5 March 2014 . The appellant suffered injuries as a result of the
collision and instituted an action for damages. The matter proceeded to trial and
the court a quo awarded an amount of R 309 855, 60 to the appellant in respect
of her claim for future loss of earnings.
[2] This appeal lies against the aforesaid award.
Trial
[3] At the commencement of the trial, the appellant’s medico legal reports were
admitted into evidence in terms of the provisions of rule 38(2). No further
evidence was presented and counsel for the parties proceeded to address the
court on the quantum of the appellant’s claim for past and future loss of earnings.
[4] The parties based their submissions on a n actuarial calculation prepared by
Johan Potgieter, an actuary. The calculation was done in accordance with a
report by David de Vlamingh, an industrial psychologist. According to the
calculations the appellant suffered a past loss of income in the amount of R
680 361, 00 and a future loss in income in the amount of R 523 609,00.
[5] Counsel for the plaintiff submitted that a 15% pre-morbid contingency deduction
should be applied to the past and future loss of income and a 25% contingency
deduction post-morbid to the future income. In the result, the claim consisted of
R 578 306, 85 in respect of past loss of earnings and R 599 277, 15 in respect
of future loss of earnings.
Judgment
[6] The court a quo had regard to the appellant’s employment history, to wit that she
only worked as a volunteer administration clerk at SA Nkosi High School from
2008 to 2013 and received a R 1000, 00 per month. At the time of the accident
the appellant was unemployed, had no salary or income and the court held that
the appellant did not suffer a past loss of income.
[7] The appellant was still unemployed at the time of the trial. In assessing the future
[7] The appellant was still unemployed at the time of the trial. In assessing the future
loss of earnings / earning ability, the court pointed to several inconsistencies in
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the expert reports. The court further held that the appellant’s unwillingness to
undergo accident-related treatment and rehabilitation has a direct impact on her
inability to perform certain work-related tasks. The court accepted that the
appellant would struggle in the workplace due the back injuries she suffered as
a result of the collision and held as follows: “Consequently, I found that the
appropriate award for loss of earning capacity would be an amount of R 309 855
after applying a 15% contingency on the amount of R 2 065 704.”
Grounds of appeal and submissions
[8] The appellant contends that the court a quo erred in rejecting her claim for past
loss of income on the basis that she was unemployed at the time of the collision.
According to the appellant an award for past loss of earnings is made in order to
compensate a plaintiff for the difference between the value of a plaintiff’s estate
after the commission of a delict and the value it would have had if the delict had
not been committed.
[9] In support of the projection of the appellant’s past income, she relied on the
evidence of de Vlamingh. According to de Vlamingh and if the collision did not
occur, the appellant would have been able to secure employment form 1 June
2014, earning between the lower and median quartile of the semi-skilled scale.
[10] In respect of the appellant’s claim for future loss of income/earning ability, the
appellant submitted that the court a quo erred in rejecting the basis postulated
by de Vlamingh. The court, furthermore, erred in applying the same future income
both pre- and post-accident, thereby ignoring the actual loss in future calculated
by Potgieter based on a career delay. The court al so erred in applying a
differential contingency on the same pre- and post-morbit income.
Discussion
Past loss of income
[11] The appellant is correct that in terms of the law of delict, the amount of damages
awarded for loss of income represents the difference between the value of a
awarded for loss of income represents the difference between the value of a
plaintiff’s estate after the commission of the delict and the value it would have
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had if the delict had not been committed. [See: Dippenaar v Shield Insurance Co
Ltd 1979 (2) SA 904 (A)]
[12] Although the appellant was not employed at the date of accident, the question is
whether she would have secured employment, but for the accident, between the
date of the accident in 2014 and the date of trial in 20 23. In other words, loss of
past income or earning ability is not calculated at the date of accident but at the
date of trial. In the result, the court a quo did err in rejecting the appellant’s claim
for past loss of income, merely because she was unemployed at the date of the
accident.
[13] It is therefore necessary to consider the appellant’s claim in this regard. The
appellant sustained shoulder, back and ankle injuries during the accident. The
most recent examination by Dr Close, an orthopaedic surgeon on 23 May 2023,
revealed that the appellant ’s only complaint was in respect of pain in her left
shoulder and arm and more particularly when she attempts to lift and carry heavy
weights.
[14] Madri Snyman (Snyman), an occupational therapist, examined the appellant in
September 2018 and in June 2023. In September 2018 the appellant stated that
she does not experience any pain in her back. She did, however, experienced
pain in her left shoulder when lifting items such as a bucket of water. Snyman
noted that the appellant completed grade 12 schooling, obtained her N2 and N3
levels, completed a computer course and that she worked as a volunteer
administration clerk from 2008 to 2013. The work was ma inly of a sedentary
nature and included typing, filing and the answering of phones.
[15] Importantly and in view of the aforesaid facts, Snyman opined as follows:
“Considering the information to hand it seems that the claimant’s ability to
perform tasks of a light nature with frequent ambulatory requirements does meet
the physical demands of her previous employment as an admin clerk should she
wish to return to such a position in future.”
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[16] Contrary to her opinion expressed in September 2018, Snyman stated the
following in her report dated 27 June 2023:
“3.2.1 Ms Maseko’s workability has been affected by the pain and weakness
experienced in her left shoulder as a result of the accident.
3.2.2 At present the claimant is limited to work with sedentary to light and light
weight handling demands and working with her arms in elevation rarely
due to the injury sustained to her left shoulder.
…..
3.2.4 From a physical perspective I anticipate that in future she will remain
limited to tasks that do not exceed a light nature or working with her arms
in elevation more than rarely, even following intervention.
3.2.5 As a result, she is limited in her choice of employment and
disadvantaged compared to her counterparts competing for the same
positions in the open labour market..
3.2.6 The claimant indicated that she would like to work as a tea lady.
Considering that the typical demands of a tea lady position is mainly
sedentary to light nature, I anticipate that she will be suited to work in
such a capacity in future.
3.2.7 Positions that include cleaning work similar to that of domestic worker,
may include elevated work more than rarely and weight handling work
exceeding a light nature. Although the claimant may be able to perform
certain tasks required of a domestic worker position, she will not be able
to meet the physical demands of the heavier spring cleaning type of
tasks required of a domestic worker position that exceeds a light nature.”
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APPERANCES
For appellant: Adv Bouwer
Instructed by: Frans Schutte & Mathews Phosa Inc
For the respondent: No appearance
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