REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 3589/06

In the matter between:

and

KOEN AJ.

[3] That she is an intellectually capable person, hardworking and determined was never seriously disputed by the defendant. Indeed, it is fair to say that this is common cause between the parties.

[4] The accident in which she was injured led, in due course, to the institution of proceedings against the defendant during April 2006. Initially the plaintiff claimed an undertaking in regard to future medical expenses; an amount of R
400 000 for loss of earning capacity; and general damages in the amount of R 400 000.

[5] On the date the trial commenced the defendant conceded the merits. As will appear from what follows the claim for future medical expenses is not contentious. By the time the matter was argued the dispute about the quantum of general damages had narrowed to the degree that it was submitted on behalf of the plaintiff that an award of between R250 000 and R300 000 should be awarded with the defendant suggesting in the heads of argument filed on its behalf that an amount of R 150 000 should be awarded. In regard to the claim for loss of earning capacity, however, matters were not as straightforward.

[6] The original claim for loss of earning capacity (R400 000) was amended during July 2008 to R869 300. The July 2008 amendment to the claim for loss of earning capacity was predicated upon the plaintiff having specialised as a gynaecologist, and having commenced practising as such during 2013, but with a 10% reduction in earning capacity brought about as a result of her injuries.
[7] During February 2009, after the plaintiff had given evidence and on the third day of the trial, the claim for loss of earning capacity was further amended to R 10 782 200. The February 2009 amendment to the claim was predicated upon the plaintiffs evidence to the effect that she had concluded, after consulting with an orthopaedic surgeon, Dr Van Wyk, shortly before the trial at the commencement of 2009, that she could not pursue her intention to specialise in gynaecology as a consequence of her neck injury and that she would remain a general practitioner.

[9] The first question which it is necessary for me to decide is whether or not the plaintiff has proved that had it not been for her injury she would have progressed in her career to specialise in gynaecology, and that she would have qualified as a gynaecologist.

[11] Moreover, from 2008, her second year in private practice, she in fact commenced assisting Dr Smith, a gynaecologist practising in Windhoek, in theatre. The amendment to her claim made at about that time was predicated upon a 10% reduction in the amount she would have earned as a gynaecologist. The amendment coincides with her involvement in the surgical side of Dr Smith's gynaecology practice which has continued since. During consultations with various expert witnesses in January and February 2009 the plaintiff told them that she intended to become a gynaecologist. She has persisted in assisting Dr Smith notwithstanding the discomfort from which she suffers as a result of neck spasm caused by her injuries, and notwithstanding that the financial rewards she gained from this aspect of medical practice are insignificant. Indeed, the plaintiff testified that she would earn more if she were to forego the time spent assisting Dr Smith, and spend that time in general practice.

[13] That the plaintiff has the intellectual capacity, determination and work ethic necessary successfully to qualify for and practise as a gynaecologist is clear from the evidence which was led during the trial and was not placed in issue by the defendant.
[14] On behalf of the defendant it was contended that the plaintiff had not taken practical steps to achieve her intention to become a gynaecologist. Being accepted to pursue specialisation in the gynaecology field is exceedingly difficult, with few posts being available at training hospitals. Professor Theron, a Professor and Senior Specialist in the Department of Obstetrics and Gynaecology at the University of Stellenbosch, explained in evidence that it often occurs that applicants for a post in the field make contact with a teaching hospital and commence studies to evidence their enthusiasm before being accepted to the training courses necessary to qualify. They do so to promote their chances of being accepted to such a course of further study. The plaintiff had not taken any substantial steps in this direction.

[16] In my view, however, the criticism of the plaintiffs evidence to the effect that she intended to pursue a specialisation in the gynaecological field is not sufficient to rebut her evidence to this effect. Her decision was made at a relatively early stage in her professional career. She was in her second year of private practice when her interest in the field translated to active surgical assistance to Dr Smith in spite of the discomfort and pain and poor financial rewards she received. It is clear from her unchallenged evidence that her personal life had during this time been somewhat less than settled. These circumstances were not conducive to a change of direction in the practise by her of her profession. That she had not taken practical steps to pursue specialising in the field at so early a stage is not unsurprising in my view.

[17] In my view the evidence shows that it is probable that she intended to progress her career in that direction and I therefore find that the plaintiff has proved that she intends to, and probably will become, a gynaecologist.

[19] The next question to be decided is whether or not the plaintiff has proved that as a result of the injuries she suffered she is not able to qualify and practice as a gynaecologist. Qualifying requires some years of intensive training during which the demands placed upon students are exacting. Once a student has qualified the demands imposed by the profession upon gynaecologists can be managed to an extent, so as to cater for each person's individual requirements.

[21] On behalf of the plaintiff Professor Cronje, the Head of the Department of Obstetrics  and Gynaecology at the University of the Orange Free State, gave  

[24] In my view, the plaintiff has not proved that she is physically incapable of meeting up to the demands of gynaecological practice. Notwithstanding the consequences of her neck injury, she will, in my judgment, be able to manage professional life as a gynaecologist in such a manner so as to make it possible for her to do so.

[25] Counsel for the defendant sought to persuade me that if I concluded that the plaintiff was able to qualify and practise as a gynaecologist then she would not have sustained a loss of earning capacity.

[31] In argument counsel for the plaintiff invited me to choose from a bouquet of alternative calculations presented during the trial that which I considered to be the most appropriate. None of these addressed in a sufficiently direct manner the likelihood that the plaintiff would be able to qualify and practise as a gynaecologist, but with a degree of impairment to her earning capacity.
[32] The approach adopted by counsel for the plaintiff underscores the difficulty of assessing loss of earning capacity claims with precision and the fact that courts are often required to speculate in this process.

[33] When pressed, counsel for the plaintiff submitted that the second approach adverted to by Mr Munro, an actuary who gave evidence for the plaintiff, was the most likely future scenario. In undertaking this particular calculation Mr Munro had been instructed to assume that the plaintiff would have commenced training as a gynaecologist in January 2011 and would have qualified as such in January 2016. Applying a contingency deduction of 15% to uninjured income, and 25% to injured income his calculations resulted in a total loss of income of R 5 292 000.

[34] Of course, Mr Munro's calculation of a loss of income is predicated upon the plaintiff not qualifying as a gynaecologist, whereas I have concluded that she will probably qualify and practise as a gynaecologist. It assumes her post injury income to be that of a general practitioner. But his calculation of the plaintiffs assumed income as a gynaecologist in uninjured state is helpful in that it reveals what the present value of such income is, applying the contingency deduction of 15% he was instructed to make.

[35] In the second scenario, to which I refer above, postulated by Mr Munro he calculated that the present day value of what the plaintiff would have earned had she progressed in her career, qualified as a gynaecologist, and commenced practising as such in 2016 is R 14 311 700. To this he applied a contingency deduction of 15% resulting in a figure of R 12 165 000.

[38] There remains the question of general damages. As stated above the battle lines had narrowed in this regard and it was contended in argument for the plaintiff that an amount of between R 250 000 and R 300 000 should be made, while on behalf of the defendant it was submitted than an award of R 150 000 should be made. I was referred to certain authorities in this regard. These can serve only as a guide. Having regard to these and the injuries suffered by the plaintiff I am of the view that an award of R 150 000 in respect of general damages ought to be made.

STEPHEN, KOEN AJ