Prinsloo v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 18 November 2008
• Citation: 2009 (5) SA 406 (SE)
• Docket Number: 3579/06
• Counsel: B Pretorius for the plaintiff. H van der Linde SC for the defendant.
• Court: South Eastern Cape Local Division

Prinsloo v Road Accident Fund
2009 (5) SA 406 (SE)

2009 (5) SA p406

Citation	2009 (5) SA 406 (SE)
Case No	3579/06
Court	South Eastern Cape Local Division
Judge	Chetty J
Heard	November 4, 2008; November 5, 2008; November 6, 2008; November 7, 2008
Judgment	November 18, 2008
Counsel	B Pretorius for the plaintiff.; H van der Linde SC for the defendant.

Flynote : Sleutelwoorde B

Evidence — Expert evidence — Evaluation — Claim for damages for bodily injuries — Loss of future earning capacity — Expert giving evidence as to plaintiff's pre- and post-morbid earning capacity — Court to be satisfied that expert's opinion founded in logical reasoning — Expert disregarding equity considerations applicable to plaintiff's prospects for promotion — Such C disregard for highly relevant considerations illogical — Court rejecting expert opinion.

Headnote : Kopnota

The plaintiff, a white female inspector in the South African Police Service (SAPS), instituted action in the High Court in which she claimed her D damages flowing from the injuries she sustained in a motor vehicle collision. The defendant having conceded liability, the court was called upon to adjudicate, inter alia, the plaintiff's claim for loss of earning capacity. The plaintiff's case rested heavily on the evidence of a medical expert, Dr H. The essence of Dr H's evidence was that, in her post-accident condition, the plaintiff was unlikely to advance beyond the level of inspector within the E SAPS. In his testimony he reaffirmed that, notwithstanding the plaintiff's placement in a sedentary position, whatever prospects the plaintiff might have enjoyed for promotion, they had been substantially reduced if not entirely negated.

Held, that in assessing expert evidence, the court had to be satisfied that the expert's opinion had a foundation in logical reasoning. (Paragraph [7] at 410G/H.)

F Held, further, that the reasoning underlying the assumptions of Dr H was fallacious. It was illogical to disregard 'the structural, procedural and ethnic considerations' in determining the plaintiff's pre-morbid earning capacity. The evidence showed that there was a surfeit of white female police officers and that equity played an important role in career-advancement prospects within the SAPS. (Paragraph [15] at 413J - 414C.)

G Held, further, that the uncontroverted evidence that prospects for promotion for white female police officers were negligible was completely at variance with Dr H's assumptions that the plaintiff would have risen to the ranks postulated by him. Dr H's disregard for highly relevant considerations when determining the plaintiff's pre-accident employment prospects was illogical. Consequently the calculations made by the actuary were premised on false H assumptions and could not be sustained. (Paragraph [16] at 414D - F.)

Held, further, that Dr H's further conclusion, that the plaintiff's promotion prospects in work of a sedentary nature were virtually nonexistent, had no proper factual foundation. The evidence established that progression through the ranks of SAPS resulted in a conversion to work of a sedentary nature and that it gradually became less physical. There was therefore no I rational basis to suggest, as did Dr H, that there was less likelihood of promotion in work of a sedentary nature. (Paragraph [20] at 415D - G.)

Held, further, that, in the court's judgment, therefore, the plaintiff had failed to discharge the onus resting upon her to show that her earning capacity had been compromised by her injury. No award could consequently be made under that head. (Paragraph [22] at 415J - 416A.) Claim for damages for J loss of future earning capacity dismissed. (Paragraph [34] at 419D - E.)

2009 (5) SA p407

Cases Considered

Annotations A

Reported cases

Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A): dictum at 917B - D applied

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): applied B

Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A): dictum at 150B - D applied.

Case Information

Action for damages for personal injuries. The facts appear from the reasons for judgment. C

B Pretorius for the plaintiff.

H van der Linde SC for the defendant.

Cur adv vult.

Postea (November 18). D

Judgment

Chetty J:

[1] This is an action for damages resulting from a collision in which the plaintiff, Ms Atlanta Angelique Prinsloo, suffered soft-tissue injury of the lumbar spine during a motor vehicle collision on 11 August 2005. The parties have reached agreement on the question of liability, the defendant E conceding that the driver of the insured vehicle was solely at fault in relation to the collision. On 12 March 2008 Froneman J, in an opposed application for a postponement of the trial action brought by the defendant, granted the order sought and ordered the defendant, inter alia, to make an interim payment of R4210,81 and to furnish the plaintiff F with an undertaking in terms of s 17(4)(a) of Act 56 of 1996. [1] The wasted costs occasioned by the postponement were ordered to stand over for determination by the trial court. I shall in due course decide that issue.

[2] At the trial before me the only outstanding issues which remained for G adjudication related to the plaintiff's claim for loss of earning capacity and general damages. With regard to the former, the plaintiff, in terms of the amended particulars, claims an amount of R2 557 289, alternatively, the sum of R965 615. These amounts were calculated by an actuary, Gerard Jacobson, using salary scales postulated in a comprehensive medicolegal report compiled by Dr RG Holmes (Dr Holmes), following H consultations with the plaintiff and references to a wide range of sources.

Loss of earning capacity

[3] It is apposite therefore to commence with the plaintiff's claim under this head of damage. The pleaded case is set out as follows in the I amended particulars:

'10.4

Estimated future loss of earnings or loss of earning capacity on the following basis: J

2009 (5) SA p408

Chetty J

10.4.1

A Plaintiff is presently employed as an Inspector in the SAPS on a salary package of R146 040;

10.4.2

The salary scales for inspectors, captains and superintendents are as follows:

Inspector I
B B and B1	1.	R135 021
	2.	R140 418
	3.	R146 040
	4.	R151 878
	5.	R157 953
C	6.	R164 271

Inspector II
Band B2	1.	R162 279
	2.	R168 774
	3.	R175 524
	4.	R182 544
D	5.	R189 843
	6.	R197 439

Captain
B and C	1.	R170 844
	2.	R177 675
	3.	R184 785
E	4.	R192 177
	5.	R199 866
	6.	R207 861

Superintendent
B and D	7.	R216 174
F	8.	R224 820
	9.	R233 811
	10.	R243 162
	11.	R252 888
	12.	R263 004

10.4.3

Pre-accident the Plaintiff would have been promoted to G captain in 2014 and to superintendent in 2019;Chetty J

10.4.4

If the Plaintiff is not accommodated in a sedentary post, in an ergonomically friendly environment where she performs only office work or is required to attend any physical courses or training sessions, she would be forced into early retirement;

10.4.5

H The Actuary Gerard Jacobson calculated her loss of earnings on early retirement or being boarded on medical reasons, at age 43, 48 and 53 as appears from the medico-legal report dated 17 October 2008 annexed hereto and marked as Annexure AAP3 and the loss if retired at age 43 would be I R2 557 289,00;

ALTERNATIVELY TO PARAGRAPHS 10.4.1 TO 10.4.5;

10.4.6

On the same assumptions as is set out hereinabove in paragraphs 10.4.1 to 10.4.3 above;

10.4.7

Plaintiff is placed in a suitable environment and in a J suitable office and continues to work until age of 60;

2009 (5) SA p409

Chetty J

10.4.8

Due to Plaintiff's loss of promotion prospects, she is not A post-accident promoted at all and remains at the level of an inspector;

10.4.9

The Actuary Gerard Jacobson calculated the Plaintiff's loss in a report dated 5th of November 2008 annexed hereto as Annexure AAP4 in the amount of R965 615,00; B

10.4.10

On the same assumptions as set out hereinabove in paragraphs 10.4.6 and 10.4.7 above but post-accident the Plaintiff is promoted to captain at age 50, the Actuary calculated the Plaintiff's loss as R762 330,00 as appears from Annexure AAP4 hereto.' [Emphasis added.]

[4] The legal position relating to a claim for diminished earning capacity C is trite. In Santam Versekeringsmaatskappy Bpk v Byleveldt [2] Rumpff JA states the principle as follows: [3]

'In 'n saak soos die onderhawige word daar namens die benadeelde skadevergoeding geëis en skade beteken die verskil tussen die vermoënsposisie van die benadeelde vóór die onregmatige daad en daarna. D Kyk, bv, Union Government v Warneke 1911 AD 657 op bl 665, en die bekende omskrywing deur Mommsen, Beiträge sum Obligationenrecht, band 2, bl 3. Skade is die ongunstige verskil wat deur die onregmatige daad ontstaan het. Die vermoënsvermindering moet wees ten opsigte van iets wat op geld waardeerbaar is en sou insluit die vermindering veroorsaak deur 'n besering as gevolg waarvan die benadeelde nie meer E enige inkomste kan verdien nie of alleen maar 'n laer inkomste verdien. Die verlies van geskiktheid...