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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 1107/2004

In the matter between:

ELIZABETH CATHARINA JOUBERT ...............................................................PLAINTIFF

and

ROAD ACCIDENT FUND .........................................................................DEFENDANT

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JUDGMENT

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GUTTA J.

A. INTRODUCTION

[1] This is an action for damages arising out of injuries sustained by the plaintiff in a collision on 24 November 2003, at Rustenburg.

[2] On 12 May 2008, the merits were settled on a ratio of 70:30 in favour of the plaintiff, namely that, the defendant pay the plaintiff 70% of his proven or agreed damages and the agreement was made an order of Court.

[3] At the commencement of the proceedings, counsel for the plaintiff, Mr Rossouw SC, informed the Court that only the quantum for general damages and loss of income are in dispute. An undertaking for future medical expenses, limited to 70%, was agreed to between the parties.

[4] The defendant did not file any expert reports and the parties agreed that the quantum will be argued on the facts contained in the plaintiff’s bundle and that no witness will be called.

[5] The plaintiff relied on the following experts’ reports:

5.1 Dr Runel Fouché – industrial psychologist;

5.2 Dr J. Earle – neuro-surgeon;

5.3 Ms H. Roos – occupational therapist;

5.4 Dr J.J.L. Heymans – orthopaedic surgeon;

5.5 Dr M. de Graad – orthopaedic surgeon.

B. COMMON CAUSE

[6] The plaintiff is a 54 years old married female with three children. She was the driver of the vehicle when she was involved in the collision. She sustained the following injuries as a result of the collision:

6.1 a minor injury to the back;

6.2 soft tissue injury to the upper limb;

6.3 soft tissue injuries affecting the right shoulder and wrist.

[7] Pre-accident, the plaintiff was employed at Teba Bank as a senior control officer, from 1997 up until the date of the accident, where she earned R17 409.00 per month. Post-accident, she returned to Teba Bank one week after the accident. She resigned in April 2004 due to pain. She then worked as an estate agent for Seeff Estate Agency and then moved to Klerksdorp, where she and her husband purchased a guest-house which she is currently running.

[8] The plaintiff’s present complaints, according to Dr Runel Fouché, an industrial psychologist who assessed her on 09 March 2012, are the following:

8.1 her social life has changed;

8.2 she is extra careful and almost fearful when driving;

8.3 neck, back and shoulder pain;

8.4 experiences pins and needles in her right foot;

8.5 unable to pick up heavy objects;

8.6 unable to sit and walk for extended periods of time;

8.7 unable to walk for extended periods of time;

8.8 unable to work in the guest-house due to pain;

8.9 pain in her right wrist;

8.10 clumsy with her right hand and drops things often.

C. GENERAL DAMAGES

[9] On general damages, Mr Rossouw SC referred the Court to case authority and submitted that the amount of R150 000.00 was reasonable. Mr Kanyane, counsel for the defendant, submitted that the amount of R150 000.00 for general damages was justified.

[10] As there is consensus between the parties in respect of general damages, the claim for general damages is R150 000.00 less 30%, totaling R105 000.00. The only head of damages for determination is the plaintiff’s future loss of earning capacity.

D. LOSS OF EARNING CAPACITY

a) Pre-injury

[11] The marketing manager and operations manager for Teba Bank expressed a difference of opinion on the plaintiff’s pre-injury promotional prospects. Mr Deon Lotter, the marketing manager, was of the opinion that there was no promotional opportunities for senior control officers, while Mr Andre Roberts, the operations manager, stated that the plaintiff, who was a good worker could have been promoted to branch manager, earning approximately R25 000.00 per month.

[12] Dr Fouché, the industrial psychologist, stated that the plaintiff would have continued earning in the region of R17 409.00 per month with the possibility of being promoted to branch manager, earning R24 000.00 per month.

[13] Prof Du Plessis, in his actuarial calculation, presented two scenarios, namely, scenario one, 50% chance of promotion and scenario two, 50% chance for no promotion. He then took the average of the two scenarios and arrived at a figure of R2 759 145.00 for pre-injury earnings.

b) Post-injury

[14] Mr Rossouw submitted that the actual loss of future income will be as a result of a 5 year early retirement.

[15] In support of the 5 year early retirement, the plaintiff relies on the reports of Dr Earle, Ms Roos and Dr Fouché as set out more fully herebelow:.

“4.1 Dr. J. Earle, Neurosurgeon, 11^th July 2008

4.1.1. This lady suffered a severe extension flexion type injury involving the neck especially and the lower back where she had had previous surgery and the right wrist, which appears to have improved largely.

4.1.2. The neck is a problem and more so than it was judging by previous report etc. it will need to be further investigated and appropriately treated. Her situation should be assessed also by an Industrial Psychologist.

4.1.3. Her ability to continue in her work seems to have been impaired. She tried to work on her own in a Bed and Breakfast but finds this difficult. To what extent the situation will improve with the correct treatment is difficult to say but it is quite likely if things don’t improve significantly that she will not be able to work for very much longer at the most say five years.”

“4.2 Ms. H. Roos, Occupational Therapist, 5^th March 2012

. . . . .

4.2.6. Mev Joubert kan sittende en ligte tot matige mediumkrag werk, binne laer matige mobiliteitsvereiste, met gereelde afwisseling en binne omvang van haar gemak, verrig. Mev. Joubert sal beide haar vorige werk in die bank en nou as gastehuisberstuurder, gemaklik verrig, met die nodige spinaalhigiene en ergonomiese opleiding, gepaste inrigting van haar werksituasie, aanpassing van haar metode en posturele wisseling. Alternatiewe werksplasing word dus nie verder ondersoek n ie, maar sy reguleer waarksynlik haar posturele gemak beter terwyl sy in die gastehuis werk, as wat sy in die bank sou kon doen.

4.2.7. Mev Joubert ly dus ʼn gekwalifiseerde prognose. Sy kan tot ʼn mate haar gemak, funksie en produktiwiteit haarself met die nodige behandeling, maar sal na verwagting, met degeneratiewe veraderinge, toenemend meer ongemak en pyn ly, met aanduiding van ʼn moontlike verdure en vroeë uittrede uit die beroepsmark.”

[16] Dr Fouché , after considering Dr Earle and Ms Roos’ report, stated that:

“It would seem as if Ms Joubert was unable to cope with her responsibilities and functions as Senior Control Officer. If deference is given to the experts at hand, it does seem possible that she would have been able to return to this capacity post-accident.”

“Deference is given to the relevant experts to comment on whether Ms Joubert’s loss of income is justifiable taking into consideration that it was reported that she resigned due to experiencing too much pain, but also because her husband was sick, and that according to the occupational therapist, she may still have been able to cope with her pre-accident employment post-accident, albeit with added pain and effort and most likely early retirement.”

“Ms Joubert’s pre accident potential has been compromised post accident. She would have difficulty continuing to work as Senior Control Officer or Guest House Manager, but seems to be better off as Guest House Manager. She will nonetheless have to retire early, and early retirement as soon as within the next five years have been indicated.”

[17] Mr Rossouw also referred the Court to the report of the orthopaedic surgeon, Dr Heymans, who saw the plaintiff on 19 March 2007, four years after the accident and stated that:

“Met die voorgestelde behandeling behoort die pasient se simptome tot so mate te verbeter dat sy geskik behoort te wees om haar normale werk te kan verrig. Die pasient se arbeidsgeskiktheid is nie beinvloed nie en sy behoort ʼn normale arbeidslewenspan te hê.”

[18] Mr Rossouw submitted that the following year, after the assessment by Dr Heymans, the plaintiff was assessed by Dr Earle, who from a neurological point of view stated that the plaintiff will need to retire from her work as Guest-House Manager in the next five years. He submitted further that the plaintiff’s symptoms have not improved.

[19] Mr Rossouw relied on the report by Dr M. de Graad, the orthopaedic surgeon, who assessed the plaintiff on 18 April 2012 and submitted that the plaintiff’s condition has deteriorated from when she was assessed by Dr Heymans. He also referred to a report by the Quebec Task Force mentioned by Dr De Graad where patients who still show symptoms of whiplash or disability six months after the injury are regarded as chronic.

[20] Mr Kanyane submitted that the plaintiff’s claim for future loss earnings is based solely on the 5 year early retirement. He submitted that the 5 year early retirement was subject to qualification that there is degenerative changes and that it is not certain that the plaintiff will retire early.

[21] He submitted further that Dr Earle assessed the plaintiff in 2008 and that his report was old when compared to other reports. He said that both Dr Earle and Dr Fouché also only talk of a likelihood of early retirement.

[22] Mr Kanyane submitted that the plaintiff has not suffered a total loss of income, but that her earning potential has been compromised. He referred to Dr De Graad’s report when Dr De Graad stated the following:

“14.3 Loss of earning capacity:

The injury sustained should not prevent her from managing a guesthouse up to normal retirement age. She will need assistance with certain tasks, for example carrying/moving heavy objects and computer work.

14.4 Future loss of earnings:

If she does have cervical spine surgery done, she will be unable to work for six weeks.

If she has local infiltrations done she will be unable to work for three days.”

[23] Mr Kanyane submitted that the experts expressed a view that the plaintiff can continue working and that this is not actual loss of income but loss of earning capacity and that the amount of R100 000.00 for loss of earning capacity is appropriate in the circumstances. He arrived at this figure by deducting 10% from the actuary’s calculation of R1 231 812.00.

[24] Mr Rossouw stressed that Dr De Graad’s opinion is from an orthopaedic point of view, while Dr Earle’s is from a neurosurgeon point of view and that the Court should accept Dr Earle’s opinion of a five year early retirement, which is calculated by the actuary, in the amount of R1 569 639.00. Hence the plaintiff claimed R1 189 506.00, that is, R2 759 145.00 less R1 569 639.00.

Analysis

[25] 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. It has open to it two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a non-possumus attitude and make no award. This principle applies with equal force to the manner in which a Judge is called upon to deal with any aspect of the assessment of the loss of earnings – if it is relevant to the assessment, he or she must make the best of the material before the Court, notwithstanding that the result may well be open to criticism. See Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).

[26] A claim for future loss of earnings/earning capacity requires:

26.1. a loss of earning capacity as a result of a damage causing event; and

26.2. an actual patrimonial loss of income as a result of the abovementioned loss of earning capacity, in which case either the one or the other may be claimed for the same amount.

See Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) at para 11.

[27] Hence, the onus is on the plaintiff to prove that her earning capacity has been compromised as a result of the accident and then to prove that her patrimony has been diminished as a result of the compromised earning capacity.

[28] Both the orthopaedic surgeons, Dr Heymans, who consulted with the plaintiff in March 2007 and Dr De Graad, who assessed the plaintiff in April 2012 share a similar view namely that the plaintiff’s earning capacity was not affected and she could work to normal retirement age.

[29] Further Dr Earle speaks of a five year retirement in 2008, which takes one to 2012–2013, while Dr Fouché in 2012 relied on Dr Earle’s report, also talks of early retirement in the next five years, which then takes one to 2017. Dr Fouché does not state that the plaintiff will have to retire in 2012–2013. Accordingly, it is incorrect to assume that the plaintiff will retire in 2012–2013.

[30] Hence, there is conflicting expert evidence whether the plaintiff could work up to normal retirement age (at 65 years) or retire in the next five years (at 60 years).

[31] Whatever the cause of the plaintiff’s resignation from Teba Bank, namely, because of pain or because of her husband’s illness, the question still remains whether the plaintiff’s earning capacity has been compromised by the accident.

[32] Having considered all the expert reports, I am of the view that the plaintiff’s earning capacity has been compromised. As time progresses her condition has deteriorated and she experiences pain. The next question for consideration is, whether the plaintiff’s patrimony has been diminished to the extent that she may not be able to continue working until retirement age, that is 65 years, and whether she will have to retire in the next five years, at age 60.

[33] Prof Du Plessis’ actuarial calculations post-injury earnings is calculated on the assumption that there is a 5 year post-morbid retirement period. Although I am of a view that there is a possibility of early retirement, I am not persuaded that it is a five year post-morbid retirement period. Hence, I cannot rely on the calculation.

[34] I, however, agree with Dr Fouché that a post-accident contingency should be allowed to make provision for early retirement. Dr Fouché opined that:

“To cater for these eventualities provision could be made by way of a relevant post accident contingency.”

Contingency

[35] A Court has a wide discretion when making an allowance for contingencies. See Southern Insurance Association Ltd v Bailey N.O 1984 (1) SA 98 (A) at 116E–117A; Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A) at 614F–G.

[36] Prof Du Plessis, in calculating the capitalized value of future earnings, made provision for 7% contingency future earnings pre-morbid and 15% future earnings post-morbid. Prof Du Plessis further stated that he assumes that pre-morbid and post-morbid career possibilities would have been the same, save for contingency adjustments and early retirement.

[37] In determining the appropriate contingency for future income uninjured and injured, I have taken the following factors into consideration:

37.1 early retirement;

37.2 loss of earnings due to illness;

37.3 risk of demotion, into a more subordinate position;

37.4 no promotional prospects;

37.5 future employability.

In respect of future income uninjured, I have also taken the fact that the plaintiff, pre-accident, suffered with backache and had two lumbar spine procedures into consideration.

[38] Accordingly, I am of the view that for the plaintiff’s future income uninjured a 15% contingency deduction is appropriate and that a 35% contingency deduction would be appropriate in respect of the plaintiff’s future income injured.

[39] When calculating the post-injury future earnings, I assumed that the plaintiff would have worked until age 65 and made provision for a 35% contingency deduction for early retirement. Hence, the quantum for loss of earning capacity is calculated as follows:

Pre-injury Post-injury

R2 759 145.00 R2 759 145.00

413 871.75 – Less 15% contingency 965 700.75 – Less 35% contingency

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R2 345 273.25 R1 793 444.25

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R2 345 273.25 ― R1 793 444.25 = R551 829.00

Less 30% loss: 165 548.70

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R386 280.30

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E. ORDER

[40] In the circumstances, I grant the following order:

1. The defendant is to pay the plaintiff the amount of R491 280.30 in full and final settlement, which payment shall be made to the trust account of Botha Coetzer Smith Attorneys, First National Bank, Lichtenburg, Account No. 62214381387, Branch Code 240-139.

2. The defendant is to provide the plaintiff with an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 70% for future accommodation in a hospital or nursing home or treatment or rendering of a service or supplying of goods or related expenses as detailed in the following medico-legal reports, in respect of injuries sustained by the plaintiff in a motor vehicle collision which occurred on 24 November 2003:

2.1 Dr J.J.L. Heymans – orthopaedic surgeon;

2.2 Dr J. Earle – neurosurgeon;

2.3 Helé Roos – occupational therapist;

2.4 R. Fouché – industrial psychologist;

2.5 Dr M. de Graad – orthopaedic surgeon.

3. The defendant is to pay the plaintiff’s taxed or agreed party and party costs on the High Court scale.

4. The costs to be paid by the defendant are to include, but not be limited to the following:

4.1 the cost of senior counsel;

4.2. the costs of the reports and the reasonable reservation, preparation and qualifying fees (if any) of all experts of whom the plaintiff has given notice; and

4.3. the reasonable travel expenses in transporting the plaintiff to her own experts and the defendant’s experts.

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N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 15 AUGUST 2011

DATE OF JUDGMENT : 06 SEPTEMBER 2012

COUNSEL FOR PLAINTIFF : ADV A.B. ROSSOUW SC

COUNSEL FOR DEFENDANT : ADV KANYANE

ATTORNEYS FOR PLAINTIFF : BOTHA COETZER SMITH ATTORNEYS

(Instructed by GROBLER LEVIN & SOONIUS INC.)

ATTORNEYS FOR DEFENDANT : MAGABANE INC.

(Instructed by T M CHAUKE ATTORNEYS)

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