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[2023] ZANWHC 46
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Rantloane v Road Accident Fund (RAF 5/2018) [2023] ZANWHC 46 (9 May 2023)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: RAF 5/2018
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
RANTLOANE TSHIDISO MILLICENT Plaintiff
and
ROAD ACCIDENT FUND Defendant
Date of Hearing: 29 NOVEMBER 2022
Date of Judgment: 09 May 2023
JUDGMENT
REDDY AJ
Introduction
[1] This is a passenger claim for damages. The plaintiff was a passenger in a motor vehicle on 26 November 2016 at approximately 16h00 at or along the R503 Lichtenburg/ Coligny Road, North West, when the driver of the motor vehicle in which the plaintiff was a passenger, was involved in a collision with a motor vehicle driven by Mr. Mojalefa Desmond Vandisi. The plaintiff was seated behind the driver. The plaintiff’s mother passed on at the scene. From the scene of the collision, the plaintiff was transported to the General De La Rey Hospital in Lichtenburg where emergency treatment was administered. From the latter hospital, the plaintiff was ferried to the Victoria Hospital, Mafikeng, eventually being discharged on 30 November 2016, to recuperate at home. The plaintiff was readmitted to the MuelMed Hospital on 31 January 2017 and was ultimately discharged on 10 February 2017.
Concession of merits by defendant
[2] The merits were conceded by the defendant. The general damages were settled in the sum of R650 000 00. The defendant is still to furnish an undertaking in terms of s 17(4) (a) of the Road Accident Fund Act 56 of 1996 in respect future medical, hospital and related expenses. There is no loss of past income.
[3] This part of the action was for the determination of quantum in respect of loss of future earning capacity, which falls for determination accompanied by the contingency deduction that is to be applied. The defendant did not file any expert reports. There was no appearance for the defendant, notwithstanding the action been competently and effectively set down.
Experts
[4] Six (6) expert’s reports were handed in under in terms of Rule 38(2) of the Uniform Rules of Court, and in addition thereto the plaintiff testified. It is uncontestable that the plaintiff sustained the following injuries as a result of the accident.
(i) Brain concussion
(ii) Right femur fracture
(iii) Soft tissue injury lumbar spine
(iv) Three rib fractures on the left side.
[5] In oral and written argument Advocate Mhlaba addressed the plaintiff’s injuries and sequelae thereof. In oral evidence the plaintiff testified on the impact of the injuries on her life, her employment and amenities of life.
Legal Principles dealing with loss of future earning capacity
[6] The applicable legal principles for a claim for diminished earning capacity is settled. The plaintiff must be placed in a position that she would have been but for the injuries that she sustained. In order to be successful with such a claim the plaintiff has to establish on a preponderance of probability that as a result of the accident she has lost the future earning capacity. (Rudman v RAF 2003 SA 234(SCA) Union & National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A) at 300, Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A)
[7] In Mercy v Road Accident Fund ZAGPPHC 635 at paragraph [12] Ranchod J advanced the following approach in respect of the loss of future earning capacity:
[12] A person’s all round capacity to earn money consists inter alia, of an individual’s talents, skill, including his/her present position and plans for the future and of course external factors over which a person has no control. A court has to construct and compare two hypothetical models of the plaintiff’s earnings after the date on which he/she sustained the injury. In casu, the court must calculate on the one hand, the total present monetary value of all that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and, on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of the patrimonial loss.
[8] In Road Accident Fund v Guedes 2006(5) SA 583 SCA at 586H-587 B, the following was set out:
“It is trite that a person is entitled to be compensated to the extent that the person’s patrimony has been diminished in the consequence of another’s negligence. Such damages include the loss of future earning capacity (see for example President Insurance Co Ltd v Matthews 1992(1) SA 1 (A) at 5C-E). The calculation of the quantum of a future amount, such loss of earning capacity, is not, as I have already indicated, a matter of exact mathematical calculation. By its nature, such an enquiry is speculative and a court can therefore only make an estimate of the present value of the loss that is often a very rough estimate (see for example Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A). The court necessarily exercises a wide discretion when it assess the quantum of damages due to loss of earning capacity and has a large discretion to award what it considers what is right. Courts have adopted the approach that, in order to assist in such a calculation, an actuarial computation is useful basis for establishing the quantum of damages, even then, the trial Court has a wide discretion to award what it believes is just (see, for example, the Baily case and Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980(3) SA 105 (A) at 114F-115D)
[9] As alluded to earlier the plaintiff introduced into evidence six (6) expert reports in terms of Rule 38(2) of the Uniform Rules of Court. In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA), the following was posited regarding the approach to the assessment of expert witnesses:
[36] … what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority [ 1997] UKHL 46: [1998] AC 232(HL(E). With the relevant dicta in the speech of Lord Browne- Wilkinson we respectfully agree…
[37] The Court is not bound to absolve a defendant from liability for allegedly negligent medical treatment or diagnosis just because evidence of expert opinion albeit genuinely held, is that the treatment or diagnosis in issue accorded with sound medical practice. The Court must be satisfied that such opinion has a logical basis, in other words that the expert has considered the comparative risks and benefits and has reached a ‘defensible conclusion ‘ (at 241 G-242 B).
…
[40] Finally, it must be borne in mind that expert scientific witnesses do tend to assess the likelihood in terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to express the prospects of an occurrence as far as they possibly could, in terms of more practical assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty percent chance and so on. This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingly v The Chief Constable, Strathclyde Police 200 SC(HL)77 and the warning given at 89D-E that‘(o)ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a Judge may be seduced into a position where he applies to the expert evidence the standards which the experts himself will apply to the question whether a particular thesis has been proved or disproved-instead of assessing as a Judge must do, where the balance of probabilities lies on a review of the whole evidence.
[10] It is against this background that I turn to deal with the various expert reports.
Orthopedic Surgeon: Dr. T.S Ramakgopa
[11] On 8 November 2019, Dr. Ramakgopa assessed the plaintiff. The plaintiff completed Grade 12 and had an honors degree in Business Marketing. Prior to the incident, the plaintiff used to dance and gym, but now has difficulty. The plaintiff sustained the following injuries:
(i) Right femur fracture,
(ii) left foot metatarsal facture,
(iii) rib fractures on the left,
(v) brain concussion,
(vi) chest contusion with pulmonary embolism
[12] After the accident the plaintiff was transported to the De La Rey hospital. At the hospital emergency medical care was administered and she was transferred to Victoria Hospital for definitive care. X-rays, blood tests and ultrasound were done. She had intramedullary nailing of the femur. Intravenous fluids, analgesics and warfarin was given. The foot fracture was treated conservatively in a moon boot.
[13] The present complaints consists of the following:
(i) Lower back pain
(ii) Pain right leg after long distance walking or standing
(iii) Pain and swelling of the left foot.
(iv) Headaches.
(v) Insomnia and anxiety.
[14] At the time of assessment the plaintiff took analgesics for pain and was on antidepressants.
[15] An analysis of the plaintiff’s injuries are as follows:
Right femur fracture
15.1 The Plaintiff has intramedullary nailing of the right femur. She complained of right lower limb pain and exertion. The fracture appeared to be clinically and radiologically healed. The implants will need to be removed in future.
Fracture metatarsals
15.2 The foot injury was treated conservatively with a moon boot. The Plaintiff complained of the left foot swelling and occasional pain. No deformity was detected. The x-rays were normal. It was concluded that conservative/symptomatic treatment will be required.
Soft tissue injury lumbar spine
15.3 The plaintiff was treated with pain medications, physiotherapy and biokinetic as reported. She complained of lower back pain. There were no signs of neurological compression. The x-rays were normal. Symptomatic treatment will be required.
Head Concussion
15.4 The plaintiff complained of headaches, insomnia and anxiety. She was on antidepressants. An assessment by a neurologist and clinical psychologist was required.
Pulmonary embolism
15.5 This diagnosis appears on the discharge summary. The plaintiff was put on warfarin and clexane during her admission. No symptoms were volunteered related to the chest. In the context of a femur fracture the acute respiratory distress may be from fat embolism. The risk of recurrent embolism is high as a result of a previous incident.
Pain and Suffering
15.6 The plaintiff suffered acute pain as a result of the right femur and left foot injury. The removal of the right femur further resulted in acute pain. The removal of the hardware which was anticipated to be in a few weeks from the date of assessment was expected to cause acute pain.
Disability, Impairment and Disfigurement
15.7 The plaintiff was temporarily disabled for four (4) months as a result of the femur and metatarsal fracture. The plaintiff had reached maximal medical improvement. The orthopedic assessment was that the impairment was mild. On removal of implants from the plaintiff, it is anticipated that an estimated period of four (4) weeks would be required for recovery.
Loss of amenities
[16] The plaintiff suffered loss of amenities during the period of hospitalization and recuperation as a result of being injured. The plaintiff was unable to work during that period. Her mobility and social interactions were duly affected resulting from the fracture. The life expectancy of the plaintiff has not been affected by the orthopedic injuries. At the time of assessment, the removal of the hardware of the right femur was to be attended to. A sum of R60 000 00 would have been required inclusive of aftercare. Sessions of physiotherapy as well as pain medication on a monthly basis needed to be catered for. The estimated cost was R5000 00 per annum for an average of 10 years. With regard to treatment for headaches, insomnia and anxiety, an assessment by a neurologist and clinical psychologist was required
[17] Dr. Ramokgopa made the following final conclusions:
The plaintiff sustained the following injuries: brain concussion, right femur fracture, soft tissue injury lumbar spine, left foot metatarsal fracture and three rib fractures on the left side. The femur fracture was treated with intramedullary nailing and the metatarsal fracture treated conservatively with a moon boot. Both fractures had healed well. The impairment in relation to the orthopedic injuries was mild. The plaintiff would benefit from the hardware removal, physiotherapy and pain medication. The insomnia and anxiety complaints would require the intervention of the relevant experts.
Specialist Neurosurgeon: Dr. Patrick L. Lekgwara
[18] The interview with the plaintiff occurred almost three (3) years after the incident. The perfunctory facts surrounding the accident and the initial medical intervention need no regurgitation. The plaintiff, in the clinical interview, complained of:
Backache
This started from the time of the accident. It was restricted to the lumbar region. There was no radiculopathy. There was no weakness. Analgesia is taken for it.
Memory loss
This occurred after the accident, it manifests itself by the plaintiff misplacing items.
Headaches
This also commenced after the accident. The headaches are located in the frontal area. It appears to be triggered by stress. The headaches are confined to about three (3) episodes a week. Analgesia is taken for it.
[19] In direct enquiry, the plaintiff confirmed that she had not experienced any convulsions. In terms of the systemic enquiry, the plaintiff did not have palpitations or symptoms of cardiac failure. The plaintiff confirmed that she had not experienced any respiratory, gastro-intestinal or urogenital symptoms.
[20] Prior to the incident, the plaintiff disclosed that she was relatively healthy, with an absence of any chronic conditions. The plaintiff had not been involved in any previous accidents. At the time of the assessment, the plaintiff had an Honors Degree in Business Management Marketing. At the time of the accident she was employed as a Business Support Officer at the Land Bank. The plaintiff was married and the mother of one child.
Higher Mental Function
Cognitive functions
[21] During the interview, the plaintiff’s speech was fluent. Her intelligence appeared to be above average, there was no assessment of her I.Q as it was beyond the scope of the mandate. The plaintiff’s attention was noted as well and sustained during the interview. Her emotional status was noted as adequate and appropriate.
General Examination
[22] The general examination indicated that the plaintiff was not pale but apyrexial. Her gait was normal. An eight centimeter scar operation was noted on the right hip; a further 2 x 1 cm operation scar on the right thigh.
Nervous System
[23] The examination of the cranial nerves, motor system, spine, sensory system, cerebellar system and reflexes did not raise any concerns. The cardiovascular and respiratory systems were normal. The abdomen was soft and non-tender. No abnormal masses were palpable on the perineum.
[24] In the opinion of Dr. Lekgwara, the plaintiff sustained blunt chest trauma (which was deferred to a cardiothoracic surgeon, right femur fracture (which was deferred to an Orthopedic surgeon), mild brain injury (Grade 1 concussion) whilst the plaintiff did not lose consciousness. This type of injury does not normally give rise to a long term sequelae. A small percentage of patients may suffer from post-concussion headaches and neuropsychological complications which may require treatment.
Disability outcome and expected complications
[25] In respect of the physical outcome of the accident, the scars have been set out. It was found that the plaintiff had some neuropsychological problems which needed assessment of a clinical psychologist. The chances of epilepsy have not been increased. It was found that the plaintiff suffered from post-concussion headaches, as a result money should be set aside for the treatment of headaches for five (5) years. This was estimated to be about R3000 00 per annum. The longevity of the plaintiff had not been affected. In respect of general damages, it was found that the plaintiff suffered acute pains for one (1) week after the incident, with chronic pains to the date of assessment. Amenities of normal living were lost during the period of hospitalization.
Dr. Puseletso M. Dlukulu, Clinical Psychologist: neuropsychological report
[26] The plaintiff was assessed on 11 November 2019. The documents that was at the disposal of Dr. Dlukulu were the Victoria Hospital, Muelmed Hospital records and the RAF1 form. The method of the assessment included the following:
Clinical interview with the Plaintiff
Bender Visual Gestalt Test
Thematic Apperception Test
The Purcell Incomplete Sentences
Forer’s Sentence Completion Test
Draw-A Person Test
Kinetic Family Drawings (KFD)
Trail Number Counting subtest
Mental Control Test
Babcock Story Recall Test
Digit Span subtest
Rey Auditory Verbal Learning Test (RAVLT)
Brief Neuropsychological Cognitive Examination (BNCE)
Grooved Pegboard Subtest.
Coding Subtest
Pattern Completion Subtest
Back Depression Inventory (BDI)
Block Design Subtest
Mazes
Tower of London Test- 2nd Ed for Adults
[27] During the interview the background history of the plaintiff was recorded. The circumstances under which the accident occurred, as well as the impact and injuries that the plaintiff sustained, were disclosed. The hospital records noted that the plaintiff sustained a slightly swollen left leg, knee injury, bruises on the right leg, pain on the ribs and hip as well as the body. The plaintiff was discharged with a fractured femur, brain concussion, pulmonary emboli’s and frontal fracture.
Pre- morbid functioning
[28] Prior to the incident, the plaintiff led a healthy life. The main complaints as set out during the assessment were the following: that the plaintiff gets stress-related headaches, is forgetful, has poor concentration, has to repeat what she reads to understand, has difficulty staying with one idea, has deteriorating eyesight, is short tempered, has pain on the right side of the neck, is a nervous passenger (PTSD), has lower and middle back pain, bends with a struggle, cannot sit and stand up for a long time, cannot carry heavy objects, has a balance problem, has difficulty falling asleep and staying asleep, cannot walk a long distance, walks slower than other people, cannot run, struggles to walk up and down the stairs and is less spontaneous with people than before. It was concluded that the plaintiff suffers clinical and psychological (behaviorally and affectively), had poor control of emotional response, a mild level of depression and a severe level of anxiety.
[29] The plaintiff’s pre-accident condition is unchallenged. In terms of post-accident, the plaintiff continued with the same job description, notwithstanding the Plaintiff’s struggles with headaches, lower back pain, and mobility issues. Her condition did not affect her salary.
[30] The neuropsychological deficits relates to the plaintiff’s presence of Post-Traumatic Stress Symptoms having the potential to bring about attention and concentration difficulties. They have contributed to memory problems she has been experiencing as concentration abilities are considered to be fundamental to memory abilities. The psychological symptoms could as such have contributed to the cognitive change that she has been experiencing post- accident. As grief refers to a complex of behavioral affective, cognitive and somatic disturbances displayed by an individual following the death of a loved one, it may be considered to be a particular case of more general malady of depression. It was recommended that future medical expenses for stress-related headache, deteriorating eyesight, pain on the right side of the neck, PTSD lower and middle back pain and the balance problem be compensated.
Occupational Therapist: Morongwa Sekele, date of assessment, 6 November 2019
[31] The assessment included a summation of the incident as well as an overall treatment of the plaintiff after the accident. The current complaints as a result of the accident were noted. The assessment proceeded on the basis of setting out the plaintiff’s family and personal background, home and socio-economic background, habits and activities before the illness and general observation.
[32] A number of evaluations performed included clinical observations, physical assessments relevant to the diagnosis, standardized, manual and informal tests, interviews and questionnaires, studying of available records and activity participation. The Goniometer was used for the ROM (Range of Movement), and the Oxford Scale were used for MMT (Manual Muscle Testing).
[33] In the final analysis, it was found that the plaintiff’s residual physical capacity matches the full physical demands of her current job as a personal assistant. The plaintiff continues to work with some limitations. Irrespective of the plaintiff having returning to her pre-accident occupation, it was probable that the plaintiff’s productivity has declined because of the residual pain symptoms and memory deficits. It was found that the plaintiff was not competitive for medium, heavy and very heavy work. The plaintiff is capable of work within sedentary, light and lower medium category with the current conditions being reasonable accommodation. It was found that the plaintiff suffered a reduction in her physical and cognitive work capacity notwithstanding continuing with her previous employment capacity.
[34] Prior to the incident, the plaintiff used to spend her free time cycling and going to the gym, she also managed to perform all self-care tasks including house chores independently. Post-accident, the plaintiff stopped taking part in pre-accident leisure activities. As a result of pain on the right leg, lower back and left foot limited the plaintiff’s ability to participate in pre-accident leisure activities. Regarding post-accident self-care and domestic tasks independently with some pain and discomfort. It was concluded that the plaintiff suffered a loss of amenities because of injuries from the incident.
Industrial Psychologist: Mr. Thomas Tsikai, date of assessment 4 November 2019
[35] The plaintiff did not suffer from any notable conditions. The plaintiff experienced a healthy childhood and reached all the development milestones. The family background and social environment was delineated. The plaintiff’s pre-accident education indicated that she had completed Grade 12 at Prudence High School in 1986. In 2011, the plaintiff successfully completed a Diploma in Marketing Management. In 2018 (post-morbid) she qualifies for a degree in BPhil (Honors) in Marketing Management.
[36] The employment history was set out in detail depicting her occupation, employer, earnings and reason for leaving. The plaintiff was able to return to her pre-morbid employment after a four (4) month recuperation period following the accident. The plaintiff was still employed as a Personal Assistant earning a gross salary of R39 272 95 per month.
[37] The assessment findings disclosed that the plaintiff experiences a high levels of anxiety. In terms of physical function, the plaintiff reported the following physical limitations:
Recurrent headaches
Lower back pain
The inability to sustain prolonged walking or standing
Insomnia
Right leg pain
Actuary: Mr. Gregory Witttaker, date of assessment 12 March 2021
[38] After due consideration of inter alia, plaintiff’s personal information and life expectancy, earnings (pre-accident and post-accident earnings), retirement age and retirement benefits, the following summary of results were presented:
SUMMARY OF RESULTS
Basis I: Uninjured ceiling at the upper quartile total package of the Paterson C2 level.
Future loss
Value of income uninjured R 4, 394,795
Less Contingency Deduction 6.00% R 263,688
____________
R 4 131, 107
Value of income injured R 3 818, 324
Less contingency deduction: 21.00% R 801,848
___________
R 3, 016, 476
Net future loss: R 1, 114,630
Total net loss: R 1, 114,630
Basis II: Uninjured ceiling at the upper quartile total package of the Paterson C3 level.
Future Loss
Value of income uninjured R 4, 997, 164
Less contingency deduction 6.00% R 299.830
___________
R 4, 697,334
Value of income injured R 3, 818,324
Less contingency deduction: R 801, 848
R 3, 016, 476
Net future loss: R 1, 680,858
Total net loss: R 1, 680,858
Discussion
[39] The future loss of earnings represents the difference between the pre-morbid and post- morbid figures after the application of the appropriate contingencies. The court is enjoined with a wide discretion which needs to be exercised judicially when it determines the fair and reasonable compensation for loss of income or earning capacity. (See supra Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904(A))
[40] In Southern Insurance Association v Bailey NO 1984 (1) 113G at 114A, Nicholas JA stated as follows:
“Any enquiry into damages for the 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-possums attitude and make no award. See Hersman v Shapiro & Co 1926 TPD 367 at 379 per Stratford J). (See also Road Accident Fund v Guedes 2006(5) SA 583 (SCA) at 586)”
[41] In the determination of the plaintiff’s loss of earning capacity two established methodologies are followed. The first is establishing a reasonable and fair amount based on the proven facts and prevailing circumstances. This requires a determination of a once-off payment that the court regards to be fair and just in the circumstances. The next approach is to establish an amount by mathematical calculation based on the proven facts of the case. (SeeSouthern Insurance Association v Bailey NO supra at page 98).
[42] In Southern Insurance Association v Bailey N.O. 2 1984(1) SA 98 AD at p114 C-D Nicholas JA stated:
"In a case where a Court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, while the result of an actuarial computation may be no more than an "informal guess", it has the advantage of an attempt to ascertain the value of what was lost on a logical basis."
[43] In the present instance, the plaintiff did provide the actuarial report and furnished this Court with evidence of actuarial calculations on which a finding can be made as set out in Bailey. These calculations provide a logical foundation in an attempt to determine the value of what was lost.
[44] In MT v RAF 2021 All SA 285 (G), the reasoning with which I align myself, the role of the industrial psychologist and actuary were described as follows:
“The Actuary- The parties routinely seek to assist the court in its assessment of the appropriate amount payable by the resort to the expertise of an actuary. Actuaries rely on look- up tables which are produced with reference to statistics. Such statistics are derived from inter alia from surveys and studies done locally and internationally in order to establish norms, representatives and means. From these surveys and studies, baseline predictions as to the likely earning capacity of individuals in situations comparable to that of the Plaintiff are set. These baseline predictions are often applied to a Plaintiff’s position using various assumptions and scenarios which should have some foundation in fact and reality.
The general position of the actuary is to posit the Plaintiff as she has proven to have been in her uninjured state and then to apply assumptions (generally obtained from the industrial psychologist) as to her state with the proven injuries and their sequela. The deficits that arise between these scenarios (if any) are then translated with reference to various baseline means and norms used. These exercises are designed with the aim of suggesting the various types of employment which would hypothetically be available to the Plaintiff both pre and post morbidity. The loss is calculated as the difference in earnings derived between the pre-accident or pre-morbid state and post-accident or post morbid state. In this exercise, uncertainty as to the departure from norms such as, early death, the unemployment rate, illness, marriage, other incidents and other factors unconnected with the Plaintiff’s injuries which would be likely, in the view of the court to have a bearing both on the established baseline used by the actuary and on the manner in which the Plaintiff given his particular circumstances would fare as compared to established norm are dealt with by way of “contingency” allowances. These are applied by the court dealing with the case in order to adjust the loss to reflect as closely as possible to the real circumstances of the Plaintiff. This is a delicate exercise which is an important judicial function. The report of the industrial psychologists is pivotal to the actuarial calculation. This is because the actuarial calculation must be performed on an accepted scenario as to income, employment, employment prospects, education, training, experience and other factors which allow for an assessment of the likely career path pre- and post the injuries.
It thus stands to reason that, if the base scenarios adopted by the actuary are fallacious, the actuarial calculation is of no value to the court or to the RAF officials engaged in negotiating a settlement. If the income at the date of accident is over-stated even by a few thousand rands this would lead to a significant inflation of the proposed loss in that the calculation is exponential. Thus, for example the difference between income of R5000 per month as opposed to one of R7000 is calculated over a period of 15 years is R610 000 extra on the claim. Thus even a relatively modest claim is easily and significantly inflated by means of this ploy.” (My underlining)
[45] There is however, a more concerning fact in the plaintiff’s case which warrants remark. In terms of post-morbid education, the plaintiff pursued tertiary education, even though she conceded that at times it was challenging, given the various confirmed conditions.
[46] In 2019, the plaintiff during various assessments, raises a plethora of medical complaints, notably during the assessment of Dr Lekgwara, on 5 November 2019, the plaintiff complained of memory loss. On 6 November 2019 during the assessment by the Occupational Therapist, the plaintiff amongst others complained that due to the accident, she suffered from headaches, insomnia, memory loss and anxiety.
[47] To Dr Phuseletso M. Dlukulu on 11 November 2019, the plaintiff does accentuates inter alia stress related headaches, forgetfulness, poor concentration, has to embark on repetitive reading to understand and has difficulty staying with singular idea.
[48] There is no underscoring the impact of the incident on the plaintiff’s physical abilities. The was no rebutting evidence that the residual limitations have a potential effect on her ability to work. But for the incident, the plaintiff would have been able to increase her earnings as per the pre-morbid assessment. Resultantly, the plaintiff is probably set to reach her career ceiling on a lower level compared to pre-accident. Hence, the plaintiff can be categorised as an unequal competitor in the open labour market when compared to uninjured counterparts. The functionality of the plaintiff will hinge on recommended intervention by the specialists. The recommended interventions will only assist the plaintiff to function better in her environment. There is no guarantee that the current symptoms will be eradicated after receiving medication or any recommended form of intervention. In short, “functional progress is directly linked to the medical prognosis and progression, as well as the success of the future recommended intervention by other specialists.”
[49] The mathematical approach enunciated in Bailey, supra, supported by the actuarial calculations can still be employed by this Court, given the absence of any disproving expert evidence. I align myself with what was stated in Road Accident Fund v Maasdorp [2003] ZANCHC 49, that:
“The question of loss of earning and loss of earning capacity is a vexed one and is often considered by our courts. Usually, the material available to the court is scant and very often, the contentions are speculative. Nevertheless, if the court is satisfied that there was a loss of earning and/or earning capacity, the court must formulate an award of damages. What damages the court will award will depend entirely on the material available to the court.”
[50] In Hendricks v President Insurance Co Ltd 1993(3) 158 at 166 E-F the following was stated:
“The principle applicable to the assessment of damages has its ratio in the policy that the wrongdoer should not escape liability merely because the damages(s) he caused cannot be quantified readily or accurately. The underlying premise upon which the principle rests is that the victim has, in fact, suffered damage(s) and the wrongdoer is liable to pay compensation or solatium.”
[51] In Mvundle v RAF Unreported North Gauteng High Court Case 63500/2009(17 April 2012) the following was stated:
[42] It is trite that damages for loss of income can be granted where a person has suffered or will suffer a true patrimonial loss in that his or her employment situation has manifestly changed. The Plaintiff’s performance can also influence his/her patrimony if there was a possibility that he/she could lose his/her current job and/or be limited in the number and quality of his /her choices should he/she decide to find employment.
[52] In respect of contingencies, the seminal authority consistently quoted is Goodall v President Insurance Co Ltd 1978 (1) SA (W) at 392H- 393G, where the following was stated:
In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art or science of foretelling the future, so confidently practiced by ancient prophets and soothsayers, and by authors of a certain type of almanack, is not numbered among the qualifications for judicial office.
…
When assessing the damages for loss of earning or support, it is usual for a deduction to be made for the general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the court….”
“[18] The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge’s view of what is fair in all the circumstances of the case.”
[19] That still remains the legal position. There is no hard and fast rule of general application requiring a court to consider past awards. Such awards are seldom on all fours with the facts of the case under consideration” (See also Road Accident Fund v Marunga 2003(5) SA 165 (SCA)
[53] It is settled law, that general contingences cover a broad spectrum of considerations which is determined on a case basis by case. Five (5) percent and fifteen (15) per cent for past and future loss, respectively have become accepted as normal contingencies. In Bee v Road Accident Fund 2018 (4) SA 366 (SCA) at para 116, the SCA, increased the general pre-morbid contingency deductions for future loss of earnings to 25 per cent notwithstanding that the claimant in that matter was 54 years old and the latter stages of his working life. The traditional considerations include taxation, early death, loss of employment, promotion prospects etc. The actual assessment done took these customary considerations into account. (See Robert J Koch The Quantum Yearbook (2015) at 120)
[54] After due consideration of the evidence available to this Court, I am satisfied that there was a loss of earning and/or earning capacity. Resultantly, I align myself with contingency deductions as set out in basis 1 of the actuarial calculations.
Order
[55] Consequently, I make the following order:
(i) The Defendant shall pay the Plaintiff an amount of R1 114 630 of loss of earnings for damages sustained by the plaintiff during the motor collision which occurred in 26 November 2016.
(ii) The Defendant shall furnish the Plaintiff with an undertaking in terms of section 17(4) (a) of the Road Traffic Accident Fund Act 56 of 1956 in respect of future medical, hospital and related expenses.
(iii) The Defendant shall pay the Plaintiff’s costs either as agreed or taxed including the costs of those expert witnesses whose reports had delivered in terms of Rule 36(9)(b).
A REDDY
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances:
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Counsel for the Plaintiff: |
Advocate B.R. Matlhape
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Attorney for Plaintiff: |
Molefakgotla Attorneys 17 Minerva Street Rivera Park Mafikeng
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Counsel for Defendant: |
No Appearance
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Attorney for Defendant: |
The State Attorney |
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1St Floor East Gallery Mmabatho Tel: 018 384 062 |