Tag Archive | Disability

When does a physical disability reduce earning capacity?


Broken Arm
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. The appellant claimed damages for past and future medical expenses, compensation for loss of earning capacity in the future, and general damages.

The matter was set down for trial on 4 November 2008. After hearing evidence the learned judge made an award of R120 000-00 for general damages but 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. 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. On the facts, she suffered soft tissue injuries to the lumbar spine, which have resulted in permanent disability and impairment to perform many physical activities that are part of her work.

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.

The agreement between the medical experts, 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 stated:

“. . . 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; . .”

This eliminated the issue of retirement prior to the normal retirement of 60 years as the basis of  thereduction of earning capacity, by reason, at any rate, of the physical disability.

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. The Court held that there is no doubt that her disability impairs the continued performance of these physically demanding 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 (the physical attributes of her employment) – and that this in turn must result in the production of a lesser income in the future.

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.

The fallacy in Mr Pretorius’s criticism is that it assumes that the appellant 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.

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.

In the light of the agreement between the doctors, 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.
In the result the appeal is dismissed with costs.

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