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[2010] ZAECGHC 9
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Prinsloo v Road Accident Fund (CA 139/2009) [2010] ZAECGHC 9 (25 February 2010)
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FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT
ECJ: PARTIES: ATLANTA ANGELIQUE PRINSLOO
AND
THE ROAD ACCIDENT FUND
Registrar: CA 139/09
Magistrate:
High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN
DATE HEARD: 01/02/10
DATE DELIVERED: 25/02/10
JUDGE(S): JONES J, PILLAY J & MAKAULA AJ
LEGAL REPRESENTATIVES –
Appearances:
for the Appellant(s): ADV: B. Pretorius
for the Respondent(s): ADV: H.J. Van der Linde SC
Instructing attorneys:
for the Appellant(s): WHITESIDES ATTORNEYS
for the Respondent(s): NETTELTONS ATTORNEYS
CASE INFORMATION -
Nature of proceedings : APPEAL-DMAGES
Reportable
THE HIGH COURT OF SOUTH AFRICA
In the Eastern Cape High Court Case No CA 139/2009 Grahamstown Delivered
In the matter between
ATLANTA ANGELIQUE PRINSLOO Appellant
and
THE ROAD ACCIDENT FUND Respondent
Summary Appeal - damages – loss of earning capacity – inspector in the South African Police Services – disability arising from injuries to the lumbar spine – no proof that this disability will result in a diminution of earning ability or a reduction in income.
Coram: JONES and PILLAY JJ, and MAKAULA AJ
JUDGMENT
JONES J:
[1] On 11 August 2005 the appellant, an inspector in the South African Police Services, sustained bodily injuries in the course of a collision between two motor vehicles. The driver of the other vehicle was entirely to blame. In due course, the appellant claimed damages under the Road Accident Fund Act 56 of 1996 for past and future medical expenses, compensation for loss of earning capacity in the future, and general damages for pain and suffering and loss of the amenities of life by reason of permanent disability. The matter was set down for trial before Chetty J on 4 November 2008. By that time the Workmen’s Compensation Commissioner had paid the past medical expenses, and the Fund had made an interim payment and had given an undertaking in terms section 17(4)(a) of the Act in respect of future medical expenses. The only issues for determination by Chetty J were the appellant’s entitlement to damages for loss of earning capacity and the quantum thereof, and the issue of general damages. After hearing evidence the learned judge made an award of R120 000-00 for general damages. But he held that the appellant had not discharged the onus of proving that her disability gave rise to reduced earning capacity, and he dismissed her claim for compensation under that head. The appellant now appeals to this Court. The appeal is with the leave of the Supreme Court of Appeal and is against the dismissal of the claim for loss of earning capacity only.
[2] It is apparent from the judgment a quo that the appellant’s injuries gave rise to permanent disability which justified a substantial award for general damages. Her case was that the same disability gives rise to a claim for future loss of income. She was a member of the South African Police Services when she sustained her injuries. She held the rank of inspector. That was also her rank when the matter came to trial in November 2008. On the facts, she suffered soft tissue injuries to the lumbar spine, which have resulted in permanent disability and impairment of the appellant’s ability to perform many exacting physical activities that are part of the work of a field training officer. This was the work which she was doing at the time of the collision and at the time of the trial.
[3] In summary, the amended pleadings allege the legal basis of the main claim to be the following:
the appellant is presently employed as an inspector at an annual salary of R146 040-00;
but for her injuries she would have been promoted to the rank of captain in 2014 and superintendent in 2019 at an increased salary in accordance with prescribed salary scales which are set out in the pleadings;
unless she is accommodated in a sedentary post in an ergonomically friendly environment where she performs only office work and is not required to attend any physical courses or training sessions, she will be forced into early retirement;
as a matter of probability she will indeed be forced into early retirement at the age of 43 years with the result that she will suffer an actuarially calculated loss of R2 557 287-00. (There are alternative calculations based on early retirement at the ages of 48 and 53.)
As a first alternative to the main claim, she alleged that even if she is placed in a suitable employment environment, her disability will prevent promotion. If she continues to work until she is 60 years old (normal retirement age) at her present rank, she will suffer an actuarially calculated loss of R965 615-00. A second alternative calculation gives a loss of R762 330-00 on the supposition that she will be promoted only once, to the rank of captain at the age of 50 years.
[4] The appellant’s case for loss of income was initially prosecuted on a different basis. Her pleadings prior to amendment claimed that the consequence of her disability would be a total inability to earn any income at all and that she would be forced into early retirement at the age of 48 years.1 That was the claim which the defendant was called upon to meet on the pleadings until the amendment was made at the conclusion of the trial, after all the evidence had been led. Although not her case on the pleadings, loss of promotional prospects was raised in some of the expert reports.
[5] The correctness of the actuarial calculations was admitted. The appellant sought to discharge the onus of proving the factual allegations giving rise to the claim for a reduction of earning capacity primarily on the expert opinion of the industrial psychologist, Dr Holmes, read in the light of an agreement between the medical experts to which I shall later refer. It was Dr Holmes’s opinion that but for the injuries and the ensuing disability the appellant would have been promoted to the rank of captain and superintendent, that she will not be able to accommodate to the restrictions of the sedentary employment to which she must be confined in the future, and that this will inevitably result in emotional trauma, frustration and stagnation in the workplace, and an inability to proceed beyond the rank of inspector. The combined effect of this will probably ultimately compel her to take early retirement. To a lesser extent, the appellant also relied on the expert opinion of the occupational therapist Ms De Witt whose views must be also read in the light of the agreed medical findings. The appellant gave evidence of her employment history, and of the effect of her present condition and disability on the performance of her duties in the police force. She also called Superintendent Rautenbach to testify about her promotion through the ranks, and a friend and companion, Ms Benade, who testified about the appellant’s pre-disability life style, and on the effect of her disability on her personality and on her daily and working life generally.
[6] The agreement between the medical experts avoided the necessity to resolve the differences of opinion which are apparent from the reports of Dr Keeley, the neuro-surgeon who was to be called by the appellant, and Dr De Jonge, the orthopaedic surgeon who was to be called by the Fund. The doctors formally agreed in writing (Exhibit B) as follows:
Exhibit B1
. . . that the appellant ‘would work until normal retirement age with the provision that she is promoted to only office work, accommodated in an ergonomically friendly environment and never is required to attend physical courses or training sessions; . . . and [further] that the injury on duty 22nd December 1997 is a cervical injury (neck) which was fully recovered in 1999’;
Exhibit B2.
. . . that ‘the result of radio frequency facet joint rhyzotomy can not be guaranteed to its efficiency or the duration of the intended pain relief’;
Exhibit B 3.
1 . . . that [the appellant] ‘would be ill-advised to continue working in her present physically demanding situation in the SAPS. This will hasten the progressive deterioration in the condition of her lower back. Therefore we advise a sedentary type of work forthwith’;
2 . . . ‘that her further treatment should commence immediately. This will include:
(a) steroid (cortisone) and local analgesic fasette joint blocks at levels L4/L5 and L5/S1; relief will be short duration – possibly one month;
(b) radio frequency rhyzotomy of the L4/5 and L5/S1 fasette joints. Relief is expected for 18 months or longer. This may be replaced twice. Probability of pain relief is at least 80%;
(c) diagnostic discography – if this reproduces her pain then discectomy and disc replacement will be advised. This procedure can give her an 80% significant relief of pain’.
This agreement had a significant impact on the course of the trial. Paragraph 1 eliminated the issue of retirement prior to the normal retirement of 60 years as the basis of the reduction of earning capacity, by reason, at any rate, of the physical disability. It also eliminated the complication of a pre-existing injury which up to then had occupied considerable time and energy. It provided the framework for the claim for loss of earning capacity as ultimately defined in the amended particulars of claim.
[7] Mr Pretorius argued for the appellant that the court should have accepted Dr Holmes’s opinion that the appellant will in fact retire early despite the medical agreement that she will be able to work until normal retirement age. This was because of the realities of the physically demanding work which the appellant is required to do, her probable inability to accommodate to sedentary employment, and the emotional effect of the stagnation and frustration she will experience if she is required to do it. It is indeed so that by nature, temperament and personal inclination the appellant is an outdoor person with a love for the physical elements of police work. That is what drew her to service in the police force in the first place, what caused her to thrive on it, and what turned her into an excellent police officer. She has mainly been involved in police work of a the physical nature – charge office duties, crime prevention, police patrolling, investigation, the arrest and detention of suspects, attendance at crime scenes, and her present work – that of a police field training officer (which, according to medical opinion, she should no longer do). She did this work with distinction. There is no doubt that her disability impairs the continued performance of these duties. Mr Pretorius argued that the appellant’s condition constitutes an impairment of her capacity to earn an income – she can no longer do what she does best – and that this in turn must result in the production of a lesser income in the future. He criticized the reasoning of the trial judge in failing to come to his conclusion.
[8] I am unable to accept Mr Pretorius’s criticism. I can find no fault with the logic inherent in Chetty J’s reasoning, which emerges clearly from the structure of his judgment, the statement of the legal principles involved, and the way in which the learned judge has applied the law to the facts. The judgment sets out the basis of the appellant’s claim in terms of the amended pleadings, and re-states the law to be applied in cases of loss or diminution of earning capacity, with reference to the leading cases of Sanlam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) 150B-D and Dippenaar v Shield Insurance Co Ltd 1979 (2) (SA) 904 (A) 917B-D. He encapsulates the principle thus:2
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, for instance, in casu, considerations of equity. 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. That loss is, as adumbrated hereinbefore, calculated by the actuary on scenarios postulated by Dr Holmes.
At the same time the evidence may establish that an injury may in fact have no appreciable effect on earning capacity, in which event the damage under this head would be nil.
The learned judge found that on the evidence the appellant had failed to prove that her injury had a cognizable effect on her earning capacity, and, in that event, her damage was indeed nil. In other words, he found, as in Union and National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A) and Rudman v Road Accident Fund 2003 (2) SA 234 (SCA), that it did not in the circumstances of the case follow from proof of a physical injury which impaired the ability to earn an income that there was in fact a diminution in earning capacity. As it is put in Rudman’s case supra at 241H-242B:
The fallacy in Mr Eksteen's criticism is that it assumes that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be made. A physical disability which impacts upon capacity to earn does not necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity indeed gives rise to pecuniary loss. Thus, in Union and National Insurance Co Ltd v Coetzee, which is referred to in the passage quoted above from Dippenaar's case [supra] and which deals with a lump sum award for loss of earning capacity, Jansen JA makes the point that
''n (b)epaalde liggaamlike gebrek bring egter nie noodwendig 'n vermindering van verdienvermoë mee nie of altyd 'n vermindering van gelyke omvang nie - dit hang o.a. af van die soort werk waarteen die gebrek beoordeel word'.
In essence, the learned trial judge found that although the appellant had proved that she had suffered injuries which physically impaired her ability to perform certain kinds of police work and which prevented further advancement in the police force in those lines of work, she had not proved that she was unable to continue in her employment in the police force in other lines of work, or that she had been deprived of promotional prospects which she would in fact otherwise have had. He held in effect that on the acceptable evidence the appellant would probably not have been promoted above the rank of inspector even if she had not been injured; that she will probably continue in her employment in the police force until normal retirement age without any reduction in salary; and that she has therefore not shown that she has suffered loss.
[9] Chetty J was unable to accept the opinions of Dr Holmes and Ms De Witt because (a) he found that there was no sufficient logical connection between their conclusions and the facts, including the facts agreed to by the medical experts, and (b) it would require him to disregard the evidence of Captain Wagg. Captain Wagg is head of the human resources division of the Walmer police station where the appellant is presently employed. She was the only witness called by the Fund. Her evidence, though factual in nature as opposed to opinion, was given from the background of specialist knowledge in the fields of employment, labour relations, and human resources practice in the police force. It was not contradicted or seriously challenged. It made sense.
[10] Chetty J accepted Captain Wagg’s evidence. In doing so, he accepted
her assurance that, insofar as it was accepted by both parties that the plaintiff will henceforth have to be accommodated in a sedentary type of work, effect will be given to the expert opinion of the doctors as reflected in their agreement.3 This means that in future she will not be required to continue working in her present physically demanding position as a field training officer in the SAPS as this will hasten the progressive deterioration in the condition of her lower back, and that she will be employed to do sedentary work forthwith until normal retirement age with the provision that she is promoted only to office work, accommodated in an ergonomically friendly environment and is never required to attend physical courses or training sessions. (Exhibit B 1 and B 3.1 para 6 supra.)
her evidence that in terms of the employment policies applied by the SAPS as an employer, the physical disability from which the appellant suffers will not have any effect on her future in the police force. The judgment comments
Captain Wagg described the nature of the work a field training officer entailed. The import of her evidence was that it was largely sedentary in nature, the physical aspects being handled by various instructors. Captain Wagg's evidence, that progression through the ranks of the South African Police Service results in a conversion to work of a sedentary nature and that it gradually becomes less physical, is entirely convincing. There is nothing to counter such evidence. There is therefore no rational basis to suggest, as Dr Holmes does, that there is less likelihood of promotion in work of a sedentary nature.4
her uncontroverted evidence ‘that prospects for promotion for white female police officers are, for the present at least, negligible, [which was] completely at variance with Dr Holmes' assumptions that the plaintiff would have risen to the ranks postulated by him’.5 The court held that it was ‘of critical importance’ in this regard
‘that, at present, there is a surfeit of white female police officers within the hierarchy of the South African Police Service in the Eastern Cape. [Captain Wagg], . . . a white female, has occupied her present position as a captain for the past 16 years and it is clear from her evidence that equity plays an important role in career-advancement prospects within the South African Police Service. In a nascent democracy such as ours it cannot be otherwise. In order to redress and repair past discrimination practices, policies to benefit individuals, previously unfairly discriminated against on the basis of race, are entirely permissible if not constitutionally enjoined. It is a matter of historical record that, in our iniquitous past, race played a dominant role in almost every sphere of the civil service’.6
The consequence of this finding was Chetty J’s rejection of Dr Homles’s opinion as fallacious and illogical because, on the face of his report, he deliberately disregarded ‘the structural, procedural and ethnic considerations relevant to her position as a police officer in the South African Police Services’ in respect of her prospects of promotion in the next few years.7 There can be no doubt that Dr Holmes left out of consideration factors which the learned judge considered to be vital to the issue of whether the appellant would have been promoted. Mr Pretorius submitted that this was not material to Dr Holmes’s opinion on the point because Dr Holmes was concerned not with immediate promotion but with promotion in the more distant future. Mr Pretorius sought to confine Captain Wagg’s remarks to the immediate prospects of promotion of white female police officers in the Eastern Cape. This explanation is an oversimplification. The fact of the matter is that the defendant adduced credible evidence of facts which cast serious doubt upon the acceptability of the reasons for Dr Holmes’s opinion, and which was not eliminated or even addressed by contrary evidence on behalf of the appellant, who was the onus-bearing party. The upshot is that the appellant failed to discharge the onus of proving that she would have been promoted above the rank of inspector as postulated by Dr Holmes, and the actuarial calculations based on the supposition that she will be promoted must be disregarded.
[11] The result is that the learned trial judge preferred the factual evidence of Captain Wagg to the opinion evidence of Dr Holmes. There is no proper basis for departing from this finding (Kunz v Swart 1924 AD 618 Solomon JA 655; Rex v Dhlumayo 1948 (2) SA 677 (A), 699, 705; Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A) 452A-B). Similarly, the learned judge found himself unable to accept Dr Holmes’s view that, ‘given the plaintiff's penchant for the physical demands of her job, the growing realisation that she could no longer do so would cause her such frustration that she would no longer be able to perform optimally and would gradually lose interest, to such an extent that she would virtually give up’.8 The following comment in the judgment is fully borne out by the evidence:
This conclusion is in my view untenable. The impression I gained is that the plaintiff, notwithstanding the injury, has not allowed it to impact on her performance. She admittedly has some difficulties, for instance, in driving for long distances or standing for prolonged periods, but, these aside, she never adverted to the fact that she was not coping. In fact, when regard is had to her performance plan (exhibit F), compiled and scored by her, it shows unequivocally that the plaintiff consistently excels in her work situation. The results of the performance plan are inconsistent not only with Dr Holmes' findings, but also with the plaintiff's evidence regarding her present work performance.9
Also fully borne out by the evidence is the grave reservation entertained by the court a quo about Dr Holmes' opinion
‘that pre-accident the plaintiff was likely to have enjoyed “meaningful and rewarding growth” in the open labour market, locally and internationally. [This was] . . . unsupported by any other evidence, the plaintiff herself never [having] adverted to considering employment in foreign police services or the open labour market, whether locally or abroad’.10
[12] The underlying facts, opinions and assumptions contained in Dr Holmes’s evidence are the cornerstone of the appellant’s case for loss of earning capacity. The appellant’s case stands or falls by them. It must therefore fall. In the light of the agreement between the doctors, the trial judge correctly held that the evidence of Ms Witt did not advance the appellant’s case, and the lay evidence of the appellant, Superintendent Rautenbach and Ms Benade does not take the matter any further. The trial judge’s conclusion that the appellant did not discharge the onus of proving that she suffered a loss or reduction of her earning capacity must remain undisturbed.
[13] At a number of stages during the course of his argument for the appellant Mr Pretorius made the submission that the appellant had been unfairly treated during the trial. The complaints were different, but related. They were based upon (a) the dismissal of her application to re-open her case to lead additional evidence after Captain Wagg had testified, (b) the late disclosure of certain documents, and (c) the defendant’s failure at the end of the day to accept certain portions of the appellant’s evidence which had not been challenged in cross-examination (Small v Smith 1954 (3) SA 434). It is my view that the appellant was in no way unfairly treated or prejudiced by the way in which the trial was conducted, and that these complaints are without merit. The appellant chose to conduct the trial on the pleadings as originally drafted – namely on the basis of a claim for a total loss of earning capacity when forced into early retirement at the age of 48 years. She amended the pleadings only at the conclusion of the evidence. During the conduct of her case the agreement between the doctors was reached, which had a profound effect on the claim for loss of earning capacity and the further conduct of the matter. The issue of the effect of a previously sustained injured on the present claim, which had involved considerable cross-examination, fell away. Before the amendment there was, strictly speaking, no need to challenge certain aspects of the plaintiff’s case (the physical nature of her present work, for instance, or her loss of promotion prospects) or to investigate them. When it became apparent that the appellant would not necessarily retire early and that an alternative basis for the claim was in the offing, both parties had to change tack. New actuarial calculations were done. The defendant called for further investigations which brought to light three new documents and which led to consultations with Captain Wagg. This was after the appellant had completed her evidence and while she was in hospital undergoing the immediate treatment recommended in the medical agreement. The three documents were Exhibits E (concerning the placement of police officers in alternative positions after injury), Exhibit F (a performance self-appraisal completed by the appellant after she had sustained her injuries) and Exhibit G (relating to the nature of the work of a field training officer). These documents were not canvassed with the appellant in her evidence. But they were made available during the course of the evidence in chief of her main witness, Dr Holmes. He was able to consult with counsel and with the appellant about them, and, indeed, all three of them were put in as exhibits during the course of his evidence in chief. The application for re-opening the case was directed at calling an additional witness, another field training officer, to explain the physical nature of the work involved, because the appellant’s medical treatment made her unavailable to give that evidence on that date. There can have been no prejudice in its refusal, in particular because the agreement between the doctors made it clear that the appellant should discontinue this work. Dr Holmes was able to deal with the new documents. Although it was accepted that the appellant was not able to give evidence on that date, it is clear that she was available for consultation and able to give instructions. She did not see fit to ask for a postponement pending her discharge from hospital to enable her to be recalled to deal with any of these issues herself. She can hardly complain of prejudice in these circumstances, or of potential prejudice relating to the failure to challenge her evidence of the physical nature of a field trainer’s work, particularly in the light of the medical agreement. It is so that she was not confronted in cross-examination with Captain Wagg’s evidence and afforded an opportunity to respond to it. But Captain Wagg’s evidence was put to Dr Holmes, and there is no reason to believe that an expert witness of his qualifications and experience was not in a position to respond to it. It fell directly within his field of expertise. Mr Pretorius’s submissions were nothing more than a red herring.
[14] In the result the appeal is dismissed with costs.
JONES J
Judge of the High Court
14 February 2010
PILLAY J I agree.
R PILLAY
Judge of the High Court
MAKAULA AJ I agree
M MAKAULA
Judge of the High Court (Acting)
1 Reference to the age of 42 years in the papers was a mistake. Medical opinion at that stage was that she would be boarded or forced into early retirement 15 years from the date of the medical report (October 2007) which would be 2022. The appellant would then be 48 years old.
2 Chetty J’s judgment is reported as Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE). See 410, paras 5 and 6.
3 See footnote 2, para 9 of the judgment.
4 See footnote 2, para 20 of the judgment.
5 See footnote 2, para 16 of the judgment.
6 See footnote 2, paras 15 of the judgment.
7 See footnote 2, para 14 of the judgment.
8 See footnote 2, para 18 of the judgment.
9 See footnote 2, para 19 of the judgment.
10 See footnote 2. Para 17 of the judgment.