IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION) CASE NO: A5022/2007 In the matter between: PRINSLOO, JAN STEPHANUS obo CORNÉ PRINSLOO Appellant (Plaintiff a quo) and ROAD ACCIDENT FUND Respondent (Defendant a quo) JUDGMENT SALDULKER, J: [1] This appeal concerns a claim for damages suffered by the plaintiff s daughter, Corne ( Corne ), as a result of personal injuries sustained by her in a motor collision which occurred on 6 August 2003.

2 2 [2] It is not in issue that Corné, sustained a devastating brain injury. She further sustained soft tissue injuries of her cervical and lumbar spine. The respondent conceded the merits relating to the cause of the collision and the trial in the court a quo was only concerned with the quantification of damages. [3] The amounts claimed in respect of past and future medical costs, the costs for the formation of a trust for Corne and general damages were settled and agreed between the parties. Having agreed that Corne would no longer be employable, the only issue for determination before the trial court was her future loss of earnings. The present appeal is against the judgment and order relating to that issue. [4] The court a quo (MAYAT AJ) determined the damages for future loss of earnings as follows: Actuarially calculated future loss of earnings R Applying an upward adjustment of 13% The gross Loss of Earning Capacity R6 500, Less 15% contingency,

3 3 Total loss of future earnings R5 525, [5] The appellant s case is that Corné would, on the probabilities, after having studied medicine, have specialised in a field such as ophthalmology which she would have done in private practice. The court a quo found a 50% chance that Corné would have practiced in private practice and a 25% chance of her specialising, which the appellant contends was not supported by the evidence. [6] The appellant was granted leave to appeal against the trial court s quantification of the plaintiff s claim for future loss of earnings by that court. The present appeal is directed at the following findings by the trial court: 1. the 25% statistical chance that the minor child would have specialised; 2. the equal chance that she would have practised in the private and public sectors; 3. that her earnings would have ceilinged at R , a misdirection in relying upon HSRC values; 5. a retirement age of 65;

4 4 [7] In addition it is claimed that there was a misdirection in finding that the sum of R ,00 constituted a justifiable amount whereas the court a quo rejected as unfair and unreasonable a scenario premised on a broad spectrum of employment opportunities based on HSRC values which yielded a figure of R ,00 (an amount of R1 156,00 higher than the trial Court s finding).the court a quo should have awarded Corne s loss of earnings in the sum of no less than R ,00, so it was submitted. [8] At the trial in the court a quo the evidence led by the plaintiff was that of Dr Angus, a clinical and neuro psychologist, Ms Purchase, an educational psychologist, Ms Prinsloo, Corne s mother, Mr Naude, Corne s primary school principal, Mr Ras, the principal of Reynopark High School, Mr Linde, an industrial psychologist and Mr Venter a remuneration consultant. The defendant called Ms Vos, an industrial psychologist. [9] Mr Linde prepared three reports, all of which related to the probability of Corne specialising in medicine. In the first report his opinion was to the effect that Corne would have pursued a career within the medical field. However he states that Her main interest seems to lie in the area of work as a Medical Practitioner with the possibility of research or specialisation at a later stage. Corne is still very young and was even younger at the time of the accident and it remains difficult to determine to what level she would actually have

5 5 progressed in her desire to study and specialise within the medical environment. At the time he prepared his second report, he was in possession of Mr Venter s report. In the second report he states that there was at least a 33% chance that Corne would have become a specialist. However, based on her potential it would probably have been much higher if one considers her level of motivation and cognitive potential. I am of the view Corne would have continued with her academic studies and have qualified as a Specialist in her chosen field. However he also states that at this point in time it is difficult to say whether she would have studied further and specialised or have worked in a research capacity. In his third report he provides salary information regarding alternative career paths for Corne. [10] In view of all the aforegoing Mr Linde s predictions about Corne s future career are unsatisfactory, indecisive and contradictory. His reliance on Mr Venter s report to arrive at his conclusions in the second report makes his findings unreliable. [11] Mr Venter is a remuneration consultant who was given a mandate to determine and comment on specifically as to what is the percentage of specialists compared to general practitioners,.what percentage of female medical specialists are working in private practice versus private hospital groups versus government hospitals. Mr Venter s evidence was based on the hypothesis that Corne would have qualified as a specialist and would have

6 6 been capable of entering private practice. He chose the field of ophthalmology for Corne because of its advantages to women such as Corne. His report and generalised statements were based on studies that he conducted on future costing structures as well as the price listings for medical practitioners and specialists for the future. His evidence is limited as it was foreshadowed by his mandated instructions that Corne would practice as a general practitioner. Mr Venter is not in the medical profession. No reliance can be placed on his or Mr Linde s report as regards Corne s probable future career had the accident not occurred. [12] Before us on appeal it was submitted that a proper claim for the purposes of duly compensating Corné for her losses would be based on the following scenario: 1. that after completing her medical studies in 2013, she would have completed her internship/hospital year earning an income of R89 000, 00 (2004/2005 values) for that year. 2. During 2015 Corné would have completed her community service year, during which year she would have earned R , 00 (again 2004/2005 values). 3. Thereafter Corné would have commenced her studies in order to

7 7 specialise in a field such as ophthalmology. It was submitted that the field of ophthalmology, although not as liberally remunerated as the diagnostic fields, would have been a realistic field for Corné to have entered. 4. In commencing with her studies towards specialisation in 2016, she would have earned R , 00 per annum (2006 values) with inflationary increases over the following 4 years as a specialist registrar earning at the medical officer level. She would accordingly have completed her studies towards specialisation in In 2020 Corné would have commenced private practice as a specialist ophthalmologist. During the year 2020 it is postulated that she would have earned 60% of R , 00 (2006 value). 6. In 2021, she would have earned 80% of R , 00. From 2022 until the age of 65 she would have earned R , 00 with inflationary increases. 7. After the age of 65, Corné s income would uniformly have reduced to 50% of the value thereof until reaching a retirement age of 70 years. 8. The aforesaid postulated basis has been particularised and calculated in the actuarial report of Mr Rolland dated 23 January The amount

8 8 comes to a sum of R , 00. [13] Appellant s counsel s submission that Corne would have progressed to a specialist in private practice is based on generalised and unsupported submissions being made by both Venter and Linde without any proper substantiation. Not only was there no evidence to support this but it was based on a whole host of faulty premises. The evidence of the various people called by the plaintiff to substantiate Corne s future career profile serves to confirm that Corne was better suited to a public sector environment of helping people and curing the sick or being a medical researcher rather than engaged in a lucrative private practice. [14] Corné s mother, testified that Corne eagerly assisted children who were injured at school whenever such an opportunity arose. Corné s aspirations were clear as is evidenced by her reporting to Mr Linde that she aspired to be studied about like Professor Christiaan Barnard. The following recordal in her schoolbook (post accident) in response to an assignment is a testament to her philanthropic aspirations: Ek sal ook graag eendag n beroep wil beoefen waar ek met mense te doen gaan kry. Ek hou baie daarvan om met mense te werk. Dit is my droom om eendag n dokter te kan word, omdat ek met mense gaan werk en dat ek hulle kan help om gesond te word. [15] It is contended by the appellant that Corné s academic ability, her driven

9 9 and determined personality on the one hand and her desire to achieve and to achieve at levels of greatness would certainly have placed her within the realm of those top students who continue their studies from under graduate medicine into specialising in an appropriate field of medical specialisation without delay. However this would equally be true of those dedicated members of the medical profession who take to the rural areas and mission hospitals in their quest for helping humanity upon qualifying with their medical degrees. Furthermore there are those who embark on academic careers in order to teach aspirant medical practitioners to serve society and also those who become medical researchers and in this way increase mankind s knowledge of medicine. [16] It is trite law that an appellate tribunal will interfere with a trial Court s decision in such circumstances only where it is satisfied that there has been an irregularity or misdirection or where there is a substantial variation or striking disparity between the award made by the trial court and the award which the Appeal Court considers appropriate. [17] In my view, the approach adopted by Ms Vos in her first Addendum that in spite of certain reservations Corne could probably have pursued a post graduate career as a doctor is a fair and reasonable assessment of Corne s future:

10 10 Once again, although there is no guarantee that Corne would have ended up studying Medicine, the possibility exists that she could have pursued this career choice.. Although it cannot be stated with certainty that Corne would have specialised (let alone being able to specify which field of specialization she would have chosen) the writer, for purposes of settling this claim without incurring the costs of going to trial, recommends that a [Medical] Specialist income be used as the basis of calculating Corne s loss of future income [18] However in her further Addendum at page 1107, Ms Vos states that in the quantification of claims according to Minister van Veiligheid en Sekuirieteit v Geldenhuys 2004(1) SA 515 (SCA) at 536 I to 537 A : Indien 'n professionele persoon wat voorheen vir eie rekening gepraktiseer het, byvoorbeeld, sou besluit om vir 'n salaris te gaan werk en dan beseer word, kan sy verlies aan verdienste tog slegs bereken word op die basis van sy verbeurde salaris en nie op die basis van wat hy kon verdien indien hy sou aangehou het om te praktiseer nie. (Sien, byvoorbeeld, ook Griffiths v Mutual & Federal Insurance Co Ltd 1994 (1) SA 535 (A) op ) Hierdie uiteensetting het natuurlik nie betrekking op 'n geval waar die beseerde persoon nog nie voor sy besering enige verdienste gehad het nie. In so 'n geval moet sy verdienvermoë bereken word ooreenkomstig die benadering wat, byvoorbeeld, in Southern Insurance Association Ltd v Bailey NO 1984 (1)

11 11 SA 98 (A) toegepas is. [19] The approach adopted by the Court a quo in regard to Corne s likely earnings is an estimate of what is fair and reasonable. The estimation of the future earnings by the appellant is in my view based on unrealistic and unlikely earnings considering Corne s passion to help the community and be studied about like Christiaan Barnard. [20] The minor child s expression of wanting to be studied about like Christiaan Barnard would place her within the public as opposed to the private sector. Her desire appears to be humanitarian in nature. If regard is had to the school assignment a distinct impression is gained that the minor child would have been driven by a need/desire to help and work with people rather than a financial motive. The overall impression is that Corne is community spirited and she would have worked in all probability in the public sector rather than in the private sector. She may have followed another career within the medical field, done research work or lectured at a university. [21] Corne at the age of 14 showed already a humanitarian, community spirited and charitable side to her nature. She would probably have been motivated by other factors, not simply the desire to make money. It is uncertain as to when or if she would have specialised and in what field this specialisation would have been. She may have even retired before the age of

12 [22] Mr Linde s submission which was based on a generalisation that people are being pushed away from the public sector because of AIDS, poor salaries and unprofessional staff is not convincing and cannot be a factor to take into account in respect of Corne whose ambition was to be studied about like Christiaan Barnard and who would for the very reasons postulated by Mr Linde, work in the public sector. She would have had an equal opportunity to work in the public sector and in the private sector. [23] At the trial no evidence from a member of the medical profession was led by the appellant or the respondent on the issue as to what type of damages a medical doctor /specialist suffers when he is prevented from practising his profession. The reports of the plaintiff s experts especially that of Mr Venter and Mr Linde demonstrate the inability of these persons to testify on this issue. [24] In Kemp & Kemp The Quantum of Damages Volume 1,Special Edition (1986) at page 6007, the learned authors state that in the case where a promising young professional man has been permanently incapacitated it will usually be necessary to call evidence by an experienced member of the profession as to the particular plaintiff s reasonable expectations. This was clearly not done in the present case. Without this kind of evidence a court is in

13 13 a difficult position in attempting to realistically assess Corne s future loss of earnings, based as it is, on her profile as proved by the evidence adduced at the trial. At best for the plaintiff her predisposition to help others and serve society must be regarded as definitive in assessing her future loss of earnings. [25] Mr Wessels argued that it would not have assisted the appellant s case to call evidence from the medical profession and cited the case of Griffiths v Mutual & Federal Insurance Company Limited 1994 (1) SA 535 (A) in support of his argument. In my view his reliance on the Griffith s case is misplaced. In the Griffith s case, the plaintiff was a practising attorney who had claimed damages in respect of loss of earning capacity on the basis that she would have, but for the accident, qualified and practised as an advocate. No evidence regarding the plaintiff s probable potential earnings at the Bar was led. The court held that this was not necessarily fatal to her claim. The plaintiff had not practised at the Bar and therefore it was obviously not possible for her to state what she would have earned at the Bar. Furthermore the court held that it was doubtful whether evidence of the earnings of other members of the Bar or their average earnings would have been of assistance in determining the plaintiff s probable potential earnings. The court s view that the leading of this evidence was unnecessary was an obiter dictum and not a factual finding. [26] The court s reasoning (in the circumstances of the plaintiff) was with respect correct and is distinguishable from the case at hand. It was premised

14 14 on the view that skills, fees and earnings at the Bar vary from one individual to the other. There are many reasons for success at the Bar and one member s earnings may not be a reliable yardstick of what another member would earn In view of the many imponderables, evidence of actual earnings at the Cape Bar would probably not have been sufficient for a relatively accurate actuarial calculation of the plaintiff s future loss of earning capacity.in the Griffiths case the probability of a particular career path was not an issue as in the present case. In Griffiths case the plaintiff had already qualified as an attorney and had earned an income as such. The obiter dictum was expressed only in the context of quantifying what would be earned in an admitted probable career path and not in the context of deciding what career path would in all probability be followed by the injured party which is the position in the present case. [27] Here no evidence of any nature was placed before court as to the earning expectation of Corne as a medical practitioner, whether she be a general practitioner or a specialist, in her quest to serve humanity as a whole, consistent with her character profile. This type of evidence could only have been given by someone who is involved in the medical profession or has special knowledge of the various options open to someone like Corne. Mr Wessel s argument in my view has no merit. [28] Corné s compensation was being assessed on potential which may or

15 15 may not have been actualised. The loss contended for by the appellant was calculated on optimal earnings based on an oversimplistic assessment of her future career. The evidence does not establish a probability that Corné would have become a specialist in the private sector. Indeed the opposite seems to be the probability. [29] The judgment in the court a quo renders little assistance as to how the learned judge justified the figure of R5 525, 000. The trial Court adjusted the figure of R , 00 upward to an amount of R , 00 i.e. by approximately 13%. This had the effect of raising the entry level and ceiling figures by 13%. However as there is no cross appeal from the judgment in the court a quo this figure must be accepted just as the contingencies which were applied to it must also be accepted. In my view the appellant has not presented any satisfactory evidence to justify the actual quantum claimed by him for Corne or that he is entitled to anything more than was awarded in the trial court. He is fortunate that the respondent has not cross appealed. [30] As has been demonstrated above the appellant presented flimsy evidence as to the actual loss suffered in relation to Corne s future income and capacity to earn income. The appellant has not shown any reason for this court to increase the amount ordered by the court a quo. As there is no crossappeal it is not necessary to enter into the enquiry as to how much should have been ordered under this head of damages. It is sufficient to say that for the reasons already mentioned no case has been made out to justify that an

16 16 award greater than that ordered in the court a quo should be made by this court. [31] For these reasons the present appeal cannot succeed. Consequently the appeal is dismissed with costs. H SALDULKER JUDGE OF THE HIGH COURT I AGREE: P BLIEDEN JUDGE OF THE HIGH COURT I AGREE: C J CLAASSEN JUDGE OF THE HIGH COURT For the plaintiff : Advocate J Wessels SC Advocate E Van Vuuren Instructed by : Erasmus De Klerk Attorneys For the defendant : Advocate M Patel Instructed by : MF Jassat Dhlamini & Associates.