Fulton v Road Accident Fund

• Jurisdiction: South Africa
• Judge: CJ Claassen J
• Judgment Date: 03 November 2011
• Docket Number: 2007/31280
• Hearing Date: 02 February 2011
• Counsel: C Vallaro for the plaintiff. S Meyer for the defendant.
• Court: South Gauteng High Court, Johannesburg

CJ Claassen J: E

Introduction

[1] The plaintiff is a 44-year-old lady teacher. She instituted action for F damages against the defendant, the Road Accident Fund, suffered after she was involved as a pedestrian in a collision with an insured motor vehicle on 23 February 2007. The defendant has conceded liability for 100% of such damages that the plaintiff proves.

[2] The parties have agreed that the plaintiff is entitled to general G damages for pain and suffering, etc, in the amount of R180 000, as well as past medical expenses in the amount of R43 082,15. [1] The defendant has made an interim payment in the amount of R223 082,15, which amount covers the two heads of damages referred to above. Thus the only remaining issue in dispute concerns the plaintiff's future loss of H earnings and/or loss of earning capacity.

The common-cause facts

[3] The plaintiff matriculated at Hoërskool Postmasburg in 1986. She attended the University of the Free State where she read for a BA Phys Ed and a Higher Diploma in Education, a four-year course. She was then I appointed as physical education teacher at Hennenman Hoërskool where she also taught Afrikaans. She remained there until 1995 when she joined a private school in Johannesburg, St Martins School. She has so been employed until the present time.

CJ Claassen J

[4] She testified that sporting activities have always been her passion. A She achieved provincial colours in netball; she ran long-distance for the Free State (ran with Zola Budd); and attended the University of the Free State on a sports bursary. Physical Education was her main subject, but, as one was obliged to choose an academic subject too, she chose Afrikaans. She also completed various courses in high jump, a referees' B course in netball, and courses for coaching netball, hockey, tennis and provincial swimming.

[5] She testified that she has always been a very active person and a perfectionist. Prior to the accident she was able to demonstrate her C coaching instructions both in tennis and hockey. Post-accident she has to rely on other (usually temporary) coaches to assist her in her coaching activities. This is a headache, she says, because coaches move on and every year new coaches have to be appointed.

[6] In response to how she would react if she were asked to move out of D the sports arena and work purely as an Afrikaans teacher, she replied 'they can just as well kill me' because sporting activities are her passion and 'it always will be'.

[7] Mr Welsh, the current principal of St Martins School, testified. The evidence of Mr Welsh was not countered by any evidence forthcoming E from the defendant. His evidence therefore stands uncontroverted and forms part of the facts which are common cause. I have no reason to doubt his evidence nor has any submission been made to me on behalf of the defendant that his evidence was not totally acceptable in every respect.

[8] Mr Welsh has some 35 years of teaching experience. He has been the F principal of St Martins School for the past 21 years. He was responsible for interviewing and employing the plaintiff some 16 years ago, in 1995. At that time he was looking for an Afrikaans teacher, but was also keen to improve the school's sporting profile. A flurry of applications for the G Afrikaans teaching post was received. The plaintiff presented with an impressive CV in terms of her sports credentials and she took preference over the other applicants because of this. She has a physical-education degree and is also an Afrikaans teacher. In due course the plaintiff was promoted to head of girls' sport. He, as principal, is solely responsible for H the hiring and the dismissal of employees at the school.

[9] The plaintiff is still head of sport and is responsible for all the management and administration of the girls' sports department. She does a very good job as a coach 'supervisor', as that is what she has I actually become because she cannot do the active coaching demonstrations herself any more. Thus the school employed additional coaching staff. The employment of additional coaches costs the school about R25 000 to R30 000 a year. This is a cost that was never incurred before and is the result of the plaintiff's injuries and her inability to do what she did prior to sustaining those injuries. J

CJ Claassen J

A [10] Mr Welsh said he would be wary of employing a sports teacher who was unable to physically demonstrate aspects of the sport herself. He said:

'All the videos in the world will not help. You need somebody who can actually take a child's hand and put it there and show him how to flick B a ball into the back of the hockey ring. Those are things that Mrs Fulton used to be very, very good at and cannot do anymore.'

[11] In respect of the future, if a new principal were to take over, there could be no guarantees that the plaintiff would be kept on. In fact, Mr Welsh stated, with the advent of a new principal, many changes can C come about quickly, and there would be a strong cost-cutting flavour to these changes. As a point in case, when appointed principal, he dismissed four teachers whom he thought were not up to scratch.

[12] If the plaintiff were to be moved out of the sports department and D employed simply as an Afrikaans teacher, Mr Welsh stated, she would earn approximately R25 000 to R30 000 per annum less than she does now.

[13] Apart from the coaching, she also requires assistance in the classroom as she cannot write on the board without supporting her arm, E which is probably quite uncomfortable. She utilises technology in the form of projectors and laptops and 'that sort of thing'. As part of her rehabilitative programme she attends a gymnasium.

[14] As to the future of Afrikaans as a school subject, Mr Welsh pointed out that there are already schools that no longer offer Afrikaans as a F subject. In his words, if he were an Afrikaans teacher, he would retrain to 'find another string to his bow'. Thus the future for Afrikaans as a school subject is precarious.

[15] He further stated that the plaintiff has not been dismissed as a result G of her loyalty to the school and her excellent management skills, and ability to spot talent and good coaches. He was, however, concerned that, despite all her good work, she still was not able to actively coach, other than to instruct others how to coach.

[16] Mr Welsh further stated that, although her dismissal is not currently H at issue, a point will be reached in future where it will become a real issue. The financial implications of hiring additional coaches at approximately R30 000 per month in order to accommodate her physical disabilities will sooner or later force the school board to reconsider her position. In such a case there is a strong possibility, which he later stated I as a 'strong probability', that she will have to be demoted to a post of Afrikaans teacher only, without the responsibility of heading up the sports activities at the school. He said that up to now he has been quite happy to defend her current position at the school, but he would not be able to defend the indefensible, and at some point he will have to say to her that the budget is to be cut by R30 000 per annum, resulting in J moving the plaintiff to the post of Afrikaans teacher only.

CJ Claassen J

[17] Her most recent salary advice dated 31 January 2011 indicated that A her basic salary amounted to R15 241 per month. [2] Ms J White, an industrial psychologist, testified that, in addition to the amounts shown on her salary advice, the plaintiff received certain benefits, ie free accommodation in a school house, free telephone, free lights and water, subsidised school fees for her children attending the school, and of B course she does not have to pay rates and taxes to any municipality. Ms White also confirmed that the plaintiff's current employment is due to the endorsement of Mr Welsh, who is currently 58 years old and thus will reach retirement age within seven years.

[18] If the plaintiff were to enter the open labour market, she would do C so having lost the advantage of being able to market herself as a coach. She confirmed that Mr Welsh was of the view that her coaching skills 'won her the day in the last round'. She will also be disadvantaged when applying for an ordinary post as a teacher, as she will have to specify that she requires the assistance of a laptop and a projector and that she is not able to write on the board. D

The pleadings

[19] The plaintiff's pleadings were amended a number of times, the latest being on 22 November 2011 at the stage when the evidence had been completed and the parties commenced arguing the case before me. [3] E

[20] Currently the plaintiff's claim for future loss of earnings and loss of earning capacity is pleaded in claim A, alternatively claim B in the following terms:

'Claim A

9.4

Future loss of earning and loss of earning capacity: R875 867 F

9.4.1

St. Martin's School still employs Plaintiff as a teacher at a current rate of R15 641 per month.

9.4.2

As a result of the sequelae of the injuries sustained by the plaintiff, she is totally unable to fulfil the physical demands of her coaching job. The monetary value of this aspect of her job is equivalent to R2500 per month which the employer G has continued to pay on a gratuitous basis.

9.4.3

But for the accident Plaintiff would have continued earning R15 641 per month and an annual 13th cheque with inflationary increases only until retirement at age 65 years.

9.4.4

Now that the accident occurred Plaintiff will be required to take 3 weeks off work within the next year to attend to the H removal of the internal fixation present in her arm and 8 weeks off work in 15 years (time) to attend to the debridement of her shoulder joint and/or rotator cuff repair and an...