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[2023] ZAECQBHC 27
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Krebs v Road Accident Fund (2734/2020) [2023] ZAECQBHC 27 (25 April 2023)

SAFLII Note: Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance
with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
NOT REPORTABLE
Case no: 2734/2020
In the matter between:
JONATHAN
PETER KREBS
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
Govindjee J
Background
[1]
The
plaintiff was involved in a motor vehicle collision on 30 November
2017, resulting in the present litigation. Following a court
order
dated 2 February 2022, the issue relating to future loss of earnings
/ earning capacity was separated from the remaining
issues in terms
of Uniform Rule 33(4). Other than the question of costs, this is the
only issue requiring determination.
[1]
[2]
The plaintiff has a grade 10 education and has
completed the N1 and N2 qualifications in Electrical Theory. He is
computer literate
and holds a driver’s licence. At the time of
the accident, the plaintiff was 35 years of age and employed as a
Branch Manager
at Elf Rentals, an ‘electronics security
solution’ company (‘the company’). He returned to
work at the
end of February 2018 and was subsequently promoted to the
positions of Area Manager and General Manager.
[3]
It is common cause that the plaintiff suffered a
fracture of his L1 vertebral body, together with other fractures, an
abrasion and
bruising, because of the collision. He underwent, inter
alia, a laminectomy, fusion and insertion of transpedicular screws
and
was discharged with a lumbar brace. It is accepted that he
presents with restricted lumbar spinal movements in all directions,
especially when forward bending. He also experiences back pain which
radiates down to the back of his thighs on a daily basis and
which is
aggravated by prolonged standing and prolonged sitting. He has also
suffered a persistent Adjustment Disorder with anxiety
and
intermittently depressed mood, presents with a persistent Somatic
Symptom Disorder with predominant pain and with features
of
Post-traumatic Stress Disorder.
[4]
Various
medical records were admitted into evidence by agreement, without the
need for formal proof.
[2]
It was
also agreed that the plaintiff’s actuary would place
certificates of value before the court without the need for
testimony.
The calculations forming the basis of such certificates
were accepted as being actuarially sound.
[5]
The
plaintiff earned R20 300 per month as well as commission at the
time of the accident. The crux of the dispute is whether
he will be
able to continue in his present role successfully given the injuries
caused by the collision and their
sequelae
and,
if unable to do so, whether he has any residual earning capacity. On
the plaintiff’s version, he is a vulnerable employee
and,
should he lose his current employment, he will be unlikely to secure
similar work that will provide him with the necessary
accommodation,
and will probably remain unemployed. The plaintiff pleads further
that he is unlikely to continue working until
retirement age, given
his physical compromise, and that he is likely to suffer a truncation
in his career.
[3]
[6]
The industrial psychologists reached agreement
regarding much of the plaintiff’s pre-morbid career path and
earnings, in particular
that he would have continued to function as
general manager until the end of 2028, thereafter being promoted to
managing director
until the age of retirement (in 2047). It was
further agreed that:
‘
The
claimant will have significant difficulty in securing similar
employment that will provide him with the necessary accommodation.

When considering the previous positions he held, these were all more
physical in nature and not suited to his current condition.
Further,
given his level of education, specific skills and experience, it is
improbable that the claimant will be in a position
to secure
accommodative sedentary employment, accommodating the necessary
restrictions to his sitting endurance. When taken with
his persistent
psychological difficulties which will significantly impact on his
ability to secure or sustain employment, the claimant
will in all
probability remain unemployed once his current employment is
terminated.’
[7]
The defendant pleaded no knowledge to the
plaintiff’s claim. An additional pre-trial minute reflects that
the defendant does
not admit the pre-morbid career path and earnings
as agreed to by the industrial psychologists. It also does not admit
various
aspects of the claimed post-morbid career path and earnings,
as will become evident.
The evidence
[8]
Mr Ian
Meyer (‘Meyer’), a registered clinical psychologist
specialising in various areas of psychology, testified about
various
reports he had prepared following his interviews and assessments of
the plaintiff.
[4]
He had
spent approximately ten hours assessing the plaintiff in total. The
plaintiff’s situation had not improved from their
first
consultation during January 2020 and his mental state appeared to
have slightly deteriorated. His initial report referenced
physical
deficits, notably insomnia and pain, and included notes about the
plaintiff’s alcohol consumption, cognitive and
socioemotional
deficits. In particular, Meyer noted the relentless pain experienced
by the plaintiff, albeit at fluctuating levels
of intensity,
challenges with the plaintiff’s concentration span and
productivity as well as the plaintiff’s irritable
and angry
mood.
[9]
Meyer concluded as follows:
‘
Nevertheless,
despite a laminectomy, rhizotomy and facet block, the plaintiff
continues to experience chronic, intrusive and limiting
pain that has
had a significant and pervasive effect on his functional ability that
affects all aspects of his life. Based on his
orthopaedic prognosis,
it is probable that the plaintiff will continue to experience
significant, persistent and intrusive pain
and functional limitation
with anticipated deterioration with normal ageing. Briefly stated,
the plaintiff is a case of failed
orthopaedic rehabilitation.
…
since
his MVA [he] has been promoted to a position of general manager,
which has pushed him to the subjective limits of his coping
skills,
owing to a combination of pain, functional limitations, anxiety and
altered mood. Furthermore, owing to the synergistic
interaction of
his pain and loss of function, the plaintiff is no longer able to
perform certain jobs that require physical labour,
which has limited
his ability to perform previous aspects of his job description…
[10]
Meyer initially opined that the plaintiff
presented with an Adjustment Disorder with mixed anxiety and
intermittently depressed
mood with features of PTSD, in addition to a
persistent Somatic Symptom Disorder with predominant pain:
‘
In
the examiner’s opinion, it would appear that the plaintiff’s
pain has become severe and intractable, albeit that
there are
fluctuations in intensity. Furthermore what is persistently
distressing to the plaintiff is that he is aware that his
pain will
probably continue to remain a chronic, lifelong problem with probable
intensification with normal ageing and deterioration.
In the
examiner’s opinion, the plaintiff should be referred to a
physician specialising in pain management. A combination
of pain,
loss of function and the inability to return to his full premorbid
productivity, have predisposed the plaintiff to developing
a Mood
Disorder, considering the positive epidemiological correlation
between chronic pain and depression…the synergistic

interaction between the plaintiff’s orthopaedic injuries and
comorbid mental state, combine to limit his ability to function…the

pleasure and meaning associated with the performance of his job has
virtually disappeared.’
[11]
When the plaintiff was reassessed by Meyer during
May 2021, Meyer noted a deteriorating condition based on the
plaintiff’s
intensification of pain and increase in functional
disability, concluding as follows:
‘…
the
synergistic interaction of various factors, inter alia, consisting of
cognitive socioemotional and physical deficits, has compromised
the
plaintiff’s long-term employability within his current job and,
ipso facto general employability in the open market…the

plaintiff’s mental state has deteriorated. He [now] presents
with a Persistent Depressive Disorder and a comorbid Somatic
Symptom
Disorder with persistent pain. He also presents with features of
PTSD…[this] will probably result in a truncation
of his
working life, and [he] is considered a vulnerable employee.’
[12]
Work for the plaintiff, according to Meyer, had
become a grind, which would affect his motivation to remain in his
job. The implications
of the Persistent Depressive Disorder were that
the plaintiff’s mood would be depressed on most days, with
accompanying symptoms
including insomnia and fatigue. To make matters
worse, the prescribed anti-depressant had resulted in side-effects
such as excessive
drowsiness, so that the plaintiff had not adjusted
to the medication. During cross-examination, the witness indicated
that even
sedentary work, with opportunities to stand and stretch
during working hours, would not be a panacea given the chronic back
pain
suffered by the plaintiff and considering that effective pain
management had proven elusive.
[13]
Mrs Annemarie van Zyl (‘Van Zyl’), an
occupational therapist, testified on the contents of a report she had
prepared
during 2020, with specific reference to the impact of the
plaintiff’s accident on his work and his ability to perform
work
from a functional perspective. She also explained the contents
of a joint minute she had signed together with Ms Nandipa Maka
(‘Maka’),
dated 24 January 2022. Following independent
assessments, the therapists agreed as follows:
·
The plaintiff’s work as general manager was
classified as having light physical demands (rather than being
classified as sedentary)
due to the frequent travel obligations and
the amount of walking and standing required during site visits.
·
The plaintiff demonstrated the residual physical
capacity to manage a complete sedentary job with accommodation, given
his limited
sitting endurance and need to change his posture between
sitting and standing or walking in order to manage his pain.
·
The plaintiff struggled in his current position
with postures such as sitting, stooping and crouching, as well as
with standing
and walking due to his injuries.
·
The plaintiff experienced cognitive difficulties
which could potentially affect his productivity and accuracy at work,
and was not
best suited to his current position.
·
His pain would worsen, which could affect his
concentration, memory, productivity and accuracy, and he would find
it increasingly
difficult to perform even sedentary duties optimally.
·
The
plaintiff was a vulnerable employee who presented with significant
psycho-emotional difficulties. It was unlikely that he would
remain
employed for much longer due to the consequences of his injuries.
[5]
[14]
Van
Zyl testified that the therapists had subsequently been furnished
with the orthopaedic report of Dr Aslam. They had agreed that
there
was no need to revisit their joint minute.
[6]
Despite
that agreement, Maka, who was not called to testify, had subsequently
filed a further report deviating from her earlier
position and
holding that the plaintiff was ‘eligible for semi-skilled work
in the open labour market’. Van Zyl steadfastly
maintained the
position she had indicated in a supplementary report dated 12 March
2021, and as partly reflected in the joint minute:
‘
He
is not best suited to his present job and alternative placement is
highly unlikely due to his limited level of education and
experience.
It seems highly unlikely that Mr Krebs will remain employed for much
longer.’
[15]
Van Zyl added that she had reservations about the
extent to which the plaintiff’s employer would be willing to
continue to
accommodate him in future, and noted her academic and
professional experience suggested that the disability legislation, as
she
termed it, was typically not implemented.
[16]
Dr Brian Perry and Dr Mahmood Aslam, orthopaedic
surgeons, had both examined the plaintiff and furnished their expert
reports. They
signed a joint minute on 30 August 2022. That minute
reflects their agreement that, from a functional perspective, the
plaintiff
is ill-suited to perform any physical demanding work. While
the surgeons agree that most patients can return to performing
sedentary
and light duties (managerial / administrative /
supervisory) after thoraco-lumbar spinal fusion for a period of time,
they disagreed
regarding the plaintiff’s future employability.
In Dr Perry’s opinion, the plaintiff was ill-suited to perform
his
current duties / occupation, even though it was considered to be
sedentary and having only light physical demands. In his view,
the
plaintiff was suited to perform sedentary work as long as adaptations
and ergonomic adjustments could be made, which were not
present in
his current work environment.
[17]
In Dr Aslam’s opinion, the plaintiff would
probably be able to continue his current job as a general manager (or
a similar
type of managerial job / supervisory job) in future until
the age of between 58-60 years. Both experts testified at the trial.
Dr Perry highlighted that the plaintiff would probably experience
progressively more pain in his thoraco-lumbar spine in the future.

When he examined the plaintiff, he noted signs of Adjacent Segment
Disease and Adjacent Segment Degeneration and opined that ‘the

degeneration is likely to progress and that his pain and discomfort
is unlikely to improve’. He also testified as to his

observations of the difficulties experienced by the plaintiff at the
time of his examination. The plaintiff operated with discomfort
and
lacked easy movement. Dr Perry explained the way in which
degeneration would occur in the areas around the L1 fracture point
in
the plaintiff’s back, and the lack of a clear correlation
between degeneration, pain and disability. Degeneration would

typically not have been expected as soon as it occurred after the
accident. The likely outcome would be the progressive increase
of
pain in the thoraco-lumbar spine in the future, with intensified
symptoms and a high probability of further spinal surgery in
the
future. Surgery would not, however, remove the pain completely and
the likelihood of improvement after surgery was not good.
This would
contribute to a shortening of the period that the plaintiff might be
expected to continue working.
[18]
Dr Perry was influenced by the fact that the
plaintiff was still experiencing significant pain after a relatively
lengthy period
of time post-surgery. Most people would, he suggested,
not experience such pain 18 months after the procedures the plaintiff
had
undergone. He reiterated the conclusion expressed in his initial
report:
‘
In
summary, the claimant sustained a severe injury which has left him
with permanent chronic pain and suffering, a permanent loss
of
amenities of life, and some permanent disablement. The level or
degree of change is considered intrusive. On the balance of

probabilities, the injuries sustained, and ongoing symptoms are
consistent with the mechanism of injury.’
[19]
These views were expanded by way of a
supplementary medico-legal report dated 9 March 2021. Without
examining the plaintiff again,
Dr Perry expanded upon his views as to
the likely truncation of employability and future loss of earning
capacity, in the following
terms:
‘
The
plaintiff is presently struggling to perform even his sedentary
duties at work which he reports involves six out of eight hours
of
sitting / standing. As he does not have control as to the times that
he is able to sit and stand, he is struggling to cope with
his
employment. I believe that the plaintiff is not suited to his present
occupation, as explained to me.
There are no studies that
I am aware of dealing with persons in the plaintiff’s age group
with similar injuries indicating
the progression rate of degeneration
and I am thus unable to predict a truncation period with any medical
certainty. I am nevertheless
of the view that from an orthopaedic
perspective, the plaintiff’s condition will continue to
degenerate and that his functional
restrictions are considered to be
permanent in nature.
In my opinion, given
client’s present physical condition and the nature and
requirements of his employment, I would be surprised
if he was able
to continue in his present employment for much longer.’
[20]
Dr Perry conceded that it may have been
appropriate for him to have re-examined the plaintiff prior to
preparing this supplementary
report. He did, however, do so prior to
preparing a second supplementary report during June 2022. The
plaintiff’s condition
had not deteriorated in the period of 27
months since the previous examination. Dr Perry noted the positive
consequences of Covid-19
on the plaintiff’s ability to cope
with work, and the subsequent return to experiencing significant back
pain symptoms, based
on his consultation with the plaintiff. His
conclusion was expressed as follows:
‘
From
a purely functional perspective, the plaintiff is suited to perform
duties of a sedentary nature or light work at most. His
current job,
as explained to me by the plaintiff, consists of sedentary duties and
light duties (when travelling).
The plaintiff has
difficulties in performing these duties and when performing these
duties, his symptoms are exacerbated causing
a sequence of reciprocal
cause and effect.
Therefore, I am of the
opinion that
the plaintiff is not suited to perform his present
occupation
but rather to perform a (less stressful) sedentary
occupation that will allow him more freedom to change posture and to
rest when
needed (similar to what he performed during Covid-lockdown
period).’
[21]
The additional pre-trial minute reflects that the
defendant does not admit, in the event of Dr Perry’s opinion
being accepted,
that the employment with the company will not
continue beyond the immediate short-term future; that the plaintiff
will have significant
difficulty in securing similar employment; that
it is improbable that the plaintiff will be in a position to secure
accommodated
sedentary employment, accommodating necessary
restrictions to his sitting endurance; and that the plaintiff will in
all probability
remain unemployed once his current employment is
terminated. During cross-examination, the witness indicated that he
remained surprised
that the plaintiff had managed to remain in
employment given his condition. However, he confirmed that the
plaintiff would be able
to continue working if the employer
accommodated him even more. That would, however, imply that the
plaintiff’s travel should
cease and the witness was concerned
that that may not be practically possible. ‘Complete’
accommodation, as Dr Perry
put it, would enable the plaintiff to work
painlessly, but that was not the present scenario and the plaintiff
continued to battle
in the workplace.
[22]
The consequences of those difficulties, along with
the realities of the plaintiff’s lived experience, was
articulated by his
wife in testimony. Mrs Krebs testified openly
about the plaintiff’s constant pain and inability to assist in
the home and
the impact of his condition on his mood, which adversely
affected his family life, particularly his relationship with his
children
and wife. The plaintiff would immediately lie down to
relieve his pain on return from the workplace, routinely consuming
alcohol
to ease his condition.
[23]
Work-related travel also presented with various
difficulties, which the plaintiff again eased by resorting to
alcohol. The working
week affected the plaintiff’s ability to
relax over the weekend. The plaintiff’s concentration and
memory had also
been negatively affected. As Dr Perry had reported
following his consultations, the plaintiff continued to work only due
to the
need to earn an income. He had tried various medication to
reduce his pain without success.
[24]
Those efforts were expressed in convincing detail
by the plaintiff when he testified. The medication he had taken after
the accident
had left him dazed. He had been taking prescription
medication when he returned to work, but side-effects included an
aggravated
stomach ulcer. Swimming was not possible due to the
consequent pain and back spasms he had experienced. The plaintiff had
sought
a range of advice, also from family members who were medical
practitioners, and tried various alternatives, including combinations

of alcohol and cannabis, without success. Alcohol had proved to be
the only tonic to numb his pain.
[25]
Consequently, the plaintiff had a negative outlook
towards his future rehabilitation. He had taken anti-depressant- and
sleep-medication,
without improvement. The plaintiff was tired at
work and would eagerly await the end of the working day so that he
could lie down
at home.
[26]
Yet he remained of the view that work was good for
him and enabled him to provide for his family. He adopted a hands-on
approach
and insisted on being part of site visits to do a proper
job. This could be physically demanding, involving walking around the
perimeter of a site. The challenge was accentuated when the terrain
was undulating. The plaintiff explained the importance of personal

attendance at site meetings to build rapport with his clients. The
company had accommodated him in various ways, including an ergonomic

chair, and permitted him to lie down on the boardroom table in
Gqeberha when he needed to do so. His colleagues were also
sympathetic
to his predicament. This manner of operating, including
regular walk-arounds and breaks, affected his concentration and
performance.
His pain would accentuate towards the end of the working
day. He found working to be emotionally strenuous and felt drained.
Rest,
and alcohol, would be his comfort when he returned home. Being
unable to perform chores or fully enjoy a normal home life negatively

affected his sense of worth. Nevertheless, he had gritted his teeth
and persevered to retain his salary.
[27]
The plaintiff also explained how his situation and
mindset deteriorated as the week went on. He enjoyed aspects of his
work and
was passionate about the industry he served, but his
ailments made it difficult to continue. For various reasons, there
was a greater
need for the company to operate in Johannesburg. The
plaintiff had sensed an opportunity after his accident and taken it
for greater
financial gain for his family. The downside of this had
been increased travel to Johannesburg. While this was required
approximately
once per week pre-Covid, travel was now restricted to
once or twice a month, for four to five days at a time. But,
according to
the plaintiff, the negative consequences of the reduced
travel included a disconnect with clients and loss of feel for the
work
to be undertaken. Photographs, for example, would not provide
the complete picture in determining the appropriate security
installation.
The resultant errors would have a detrimental impact on
the business.
[28]
The challenges of operating in Johannesburg were
described at length by the plaintiff. It may be accepted that, for
the plaintiff,
the additional physical and mental demands of working
in that city, compounded by logistical challenges, the average size
of the
client’s premises and the like, are more onerous than
working in Gqeberha. In consequence, the plaintiff was forced to rely

on extra medication to cope. The situation was complicated by the
added pressures being placed on the plaintiff by the company
Chief
Executive Officer (‘CEO’), due to declining sales and the
need for the plaintiff to justify his salary. The evidence
led was
that it would not be possible for the plaintiff to operate
exclusively from Gqeberha.
[29]
During cross-examination, the plaintiff accepted
that the CEO was fully aware of his struggles and wanted to work
around his limitations,
also being impressed by the plaintiff’s
knowledge and experience. He conceded that site visits were not
required on each
of the days he was in Johannesburg.
[30]
Mr David Williams, an employment consultant,
testified that the plaintiff’s prospects for successful
employment, outside of
his current work, had been significantly
curtailed due to the accident. He would be at a distinct disadvantage
when competing for
employment on the open labour market and the
possibilities of obtaining alternative employment were bleak. The
opinion was premised
on the likelihood that prospective employers
would prefer able-bodied applicants for work, compounded by the
current economic climate
and limited job opportunities post-Covid in
the Eastern Cape. In addition, Mr Williams noted that transformation
and employment
equity policies, which afforded employment preference
to persons from previously disadvantaged communities, would further
impact
on the plaintiff’s prospects for new work. In Mr
Williams’ opinion, the plaintiff benefited from sympathetic
employment
and a different employer would probably not accommodate
the workplace challenges he experienced.
[31]
Dr Michelle Nobre, an industrial psychologist,
testified with reference to a joint minute she had signed with Mr T
Kalanko on 27
January 2022. The experts agreed that, but for the
accident, the plaintiff would likely have been promoted to managing
director
with effect from 1 January 2029 until he retired in 2047,
with the commensurate earnings being applicable. That information was

obtained from the company CEO. Their joint conclusion was summarised
as follows:
‘
Ongoing
employment at ELF Rentals beyond the immediate short-term seems
improbable:
TK: Scenario 2: Claimant
has remained employed since the accident and has been promoted in his
injured state. As long as he remains
an asset to the business and is
accommodated, he will rely on the empathy of his employer who
accommodates his shortcomings. His
professional growth may be
limited. He is likely to continue earning on par with his current
earnings.
The claimant will have
significant difficulty in securing similar employment that will
provide him with the necessary accommodation.
When considering the
previous positions he held, these were all more physical in nature
and not suited to his current condition.
Further, given his level of
education, specific skills and experience, it is improbable that the
claimant will be in a position
to secure accommodative sedentary
employment, accommodating the necessary restrictions to his sitting
endurance. When taken with
his persistent psychological difficulties
which will significantly impact on his ability to secure or sustain
employment, the claimant
will in all probability remain unemployed
once his current employment is terminated.’
[32]
A revised joint minute dated 12 September 2022,
prepared after receipt of the joint minute between Drs Perry and
Aslam, confirmed
this position:
‘
Dr
Perry as well as both occupational therapists are of the opinion that
the plaintiff is not suited to his current occupation,
and it is
unlikely that he will remain employed for much longer.
This
being the case, it is our opinion that
ongoing
employment at ELF Rentals beyond the immediate short-term seems
improbable…the claimant will in all probability remain

unemployed once his current employment is terminated.
Dr Aslam is of the
opinion that the plaintiff will probably be able to continue his
current job as a general manager (or similar
managerial / supervisory
job) up till the age of about 58 – 60 years. It is noted that
the claimant has remained employed
since the accident and has been
promoted in his injured state.
In the event of Dr Aslam’s
opinion being accepted, it is our opinion that
as long as he
remains an asset to the business and is accommodated, he will rely on
the empathy of his employer who accommodates
his shortcomings. His
professional growth may be limited. He is likely to continue earning
on part with his current earnings until
the age of about 58 –
60 years. He does however remain a vulnerable employee considering
his physical compromise and psychological
difficulties. As such
higher-than-normal post-morbid contingencies are suggested…’
[33]
Dr Nobre highlighted, during her testimony, that
the shared opinion was that the plaintiff’s employment at the
company beyond
the immediate short-term seemed improbable. The
chances of alternative employment were negatively impacted by the
combination of
continued physical and psychological challenges that
the plaintiff would experience.
[34]
Dr Nobre clarified that the ‘second
scenario’ reflected in the original joint minute would be
possible provided that
the plaintiff could remain an asset and was
fully accommodated.
The plaintiff would,
even if that scenario was accepted, lose income because of the likely
loss of earnings by commission, which
explained his motivation to
continue working. She added, however, that it was unlikely that the
requisite level of accommodation
would remain sustainable for the
duration of the plaintiff’s career, given his age and due to
the prognosis of the medical
experts who had examined him. In
addition, given the importance of travel to the job, she opined that
it may be unreasonable and
impractical to expect the employer to
extend accommodation to the extent that the plaintiff be allowed to
operate exclusively from
Gqeberha. The chances of the plaintiff
securing alternative work were compromised by his low level of
education, coupled with the
impact of his injuries.
[35]
Dr Aslam was the only witness called by the
defendant. He emphasised that the plaintiff was still employed and
acknowledged the
difficulties associated with predicting the likely
future course of events. He referred to anecdotal evidence of people
who had
undergone spinal fusion procedures and who had continued
performing supervisory or managerial functions until the age of 65 or
beyond. Dr Aslam emphasised the fact that the plaintiff had been
promoted. He expressed the strong view that early retirement would
be
unjustified.
[36]
Mr Frost
emphasised,
during cross-examination, that Dr Aslam had not been present in court
to hear the evidence of the plaintiff, his wife
and expert witnesses.
He had also not had sight of either of Meyer’s reports when he
prepared his own report. While he had
seen the reports of the
industrial psychologists and occupational therapists, he was unable
to comment whether Meyer’s reports
might have influenced his
view. He had also not seen the psycho-emotional reference, linked to
the plaintiff’s ability to
remain in employment, in the joint
report produced by the occupational therapists and conceded that this
might have altered his
thinking. He emphasised that some of the
post-surgery leisure activities attempted by the plaintiff, such as
mountain biking, suggested
that the injuries were not very serious.
Dr Aslam maintained the view that the plaintiff would, given his
experience, be employed
elsewhere if necessary, or be able to start
his own business. He took issue with various aspects of the reports
submitted by the
industrial psychologists and occupational
therapists.
The appropriate
approach
[37]
Any
claim for future loss of earning capacity typically requires a
comparison of what a claimant would have earned had the accident
not
occurred, with what a claimant is likely to earn thereafter, the loss
being the difference between the monetary value of the
earning
capacity immediately prior to the injury and immediately
thereafter.
[7]
The
enquiry is incapable of mathematical precision, involving some
speculation and estimation regarding the present value of expected

future loss.
[8]
The
joint minutes reflect a large measure of agreement among the various
experts who examined the plaintiff. The most important
differences
were those between the orthopaedic surgeons.
[38]
The
SCA has confirmed that where experts have met and filed joint
minutes, the contents of the minutes will be understood as limiting

the issues on which evidence is required.
[9]
The
following approach of Sutherland J in
Thomas
v BD Sarens (Pty) Ltd
[10]
has
largely been endorsed:
[11]
a)
Where certain facts are agreed between the parties
in civil litigation, the court is bound by such agreement, even if it
is sceptical
about those facts.
b)
Where the parties engage experts who investigate
the facts, and where those experts meet and agree upon those facts, a
litigant
may not repudiate the agreement unless it does so clearly
and, at the very latest, at the outset of the trial.
c)
In the absence of a timeous repudiation, the facts
agreed by the experts enjoy the same status as facts which are common
cause on
the pleadings or facts agreed in a pre-trial conference.
d)
Where the experts reach agreement on a matter of
opinion, the litigants are likewise not at liberty to repudiate the
agreement.
The trial court is not bound to adopt the opinion but the
circumstances in which it would not do so are likely to be rare.
[39]
In
Bee
,
the SCA added that trial courts would be entitled, if not bound, to
accept matters agreed by the experts.
[12]
In
cases where expert testimony is contested, a court must determine
whether the factual basis of a particular opinion, if in dispute,
has
been proved and must have regard to the cogency of the expert’s
process of reasoning.
[13]
Courts
are not permitted to simply accept the assumptions and figures
provided by expert witnesses in personal injury matters without

proper evaluation.
[14]
In a
field where medical certainty is virtually impossible, a court must
determine whether and to what extent the opinions of experts
are
founded on logical reasoning, in that the expert has considered
comparative risks and benefits and has reached ‘a defensible

conclusion’.
[15]
[40]
These
sentiments have usefully been expanded upon by a full bench of this
Division in
JA
obo DMA v The Member of the Executive Council for Health, Eastern
Cape
:
[16]
‘
[12]
…a conflict in the expert opinion may lie in the analysis of
the established facts and the inferences drawn therefrom
by opposing
expert witnesses. A proper evaluation of the evidence in this context
focuses primarily on “the process of reasoning
which led to the
conclusion, including the premise from which the reasoning proceeds…”
…This requires an assessment
of the rationality and internal
consistency of the evidence of each of the expert witnesses…The
source for the evaluation
of this evidence for its cogency and
reliability are (i) the reasons that have been provided by the expert
for the position adopted
by him / her; (ii) whether that reasoning
has a logical basis when measured against the established facts; and
(iii) the probabilities
raised on the facts of the matter. It means
that the opinion must be logical in its own context, that is, it must
accord with,
and be consistent with all the established facts, and
must not postulate facts which have not been proved…
[14]  Other
considerations relevant in this context are (i) the qualifications
and experience of the expert witnesses with
regard to the issue he or
she is asked to express an opinion on; (ii) support by authoritative,
peer-reviewed literature; (iii)
the measure of equivocality with
which the opinion is expressed; (iv) the quality of the investigation
done by the expert; (v)
and the presence or absence of impartiality
or a lack of objectivity. What is ultimately required is a critical
evaluation of the
reasoning on which the opinion is based, rather
than considerations of credibility.’ (original emphasis
omitted).
[41]
A
court must determine the probative value of expert evidence placed
before it and make its own finding regarding the issues raised.
This
requires consideration of the nature of the conflict in the opinion,
and the context provided by all the evidence and the
issues the court
is asked to determine.
[17]
A
court’s preference for the view of one expert over another, in
cases where there is a clash of opinions, must be justified
following
careful and critical examination.
[18]
It is
not the task of the court to develop its own theory or thesis and to
introduce on its own accord evidence that is otherwise
founded on
special knowledge and skill. The court’s function is restricted
to deciding a matter on the evidence placed before
it by the parties,
and to choose between conflicting expert evidence, or accept or
reject the proffered expert evidence.
[19]
[42]
It is
the duty of the court to make the final decision on the evaluation of
expert opinion. Expert evidence must be weighed by assessing
where
the balance of probabilities lies on the totality of the evidence.
The SCA has recently had occasion to remind courts to
bear in mind
that isolated statements made by experts should not be too readily
accepted when dealing with a field where medical
certainty is
virtually impossible.
[20]
Analysis
[43]
The
joint minute of the occupational therapists confirmed the significant
physical, cognitive and psycho-emotional difficulties
experienced by
the plaintiff which made him a vulnerable employee. They advanced the
opinion that he was not best suited to his
current position and would
find it increasingly difficult to perform even sedentary duties
optimally. For this reason, the experts
concluded that it was
unlikely that he would remain employed for much longer due to the
consequences of his injuries. Maka’s
altered opinion remained
untested and, Maka not being called to testify, the defendant was not
allowed to simply depart from what
the occupational therapists had
agreed to in their joint minute.
[21]
Van
Zyl amplified her views convincingly with reference to the
plaintiff’s limited education and experience, and there is
no
basis for the court not to accept the facts underpinning the joint
minute and the opinion advanced therein.
[44]
The industrial psychologists agreed that the
plaintiff would have been promoted to managing director had it not
been for the accident,
operating in that position from 1 January 2029
until the age of retirement. Referring to the restrictions to his
sitting endurance,
combined with psychological difficulties resulting
from the accident, they opined that he would remain unemployed once
his current
employment was terminated. It was improbable that he
would secure similar accommodative sedentary employment given his
level of
education, skill and experience. As will be indicated, there
is no basis for this court to depart from that shared opinion. As to

his present employment, ongoing employment beyond the immediate
short-term appeared improbable. But, assuming that the Aslam opinion

was preferred, provided the plaintiff could remain an asset and was
fully accommodated, he could remain employed, likely without
any
advancement and with declining earnings by commission, in his present
position.
[45]
It is apparent, from the testimony of Meyer, Mrs
Krebs and the plaintiff himself, in particular, that pain is now a
feature of the
plaintiff’s life. As an aside, this was also
readily apparent from the plaintiff’s physical difficulties
experienced
in completing his evidence in court. He had to alternate
frequently between sitting and standing and was in clear discomfort
for
much of the time. The nature of the pain, and its consequences,
are such that it must be accepted that his workplace and personal

functionality has been adversely affected. Meyer’s opinion in
that regard is logically associated with the evidence of the

plaintiff’s condition as presented and observed in court, and
with the probabilities. In sum, as he put it, ‘the synergistic

interaction between the plaintiff’s orthopaedic injuries and
comorbid mental state combine to limit his ability to function’.
[46]
It is equally clear that the plaintiff has been
coping with the demands of his present position through clenched
teeth, stoically
dragging himself to work in Gqeberha and enduring
the challenges of travel when his work takes him to Johannesburg. His
tenacity
notwithstanding, the relevant expert views presented explain
that he is operating at the limits of his subjective ability to cope,

due to a combination of physical and mental consequences of his
injuries. The evidence reveals a sound platform for that conclusion.

He is now a clock-watcher at work operating sub-optimally and, as Dr
Nobre indicated, less productive than what may be expected
of a
senior employee in his position, with no real prospects of his
situation improving significantly. Based on the evidence, it
would be
over-optimistic to find otherwise. This accords with Van Zyl’s
concern as to the prospects of the plaintiff’s
employer
accommodating him in future and on an ongoing basis to the full
extent required.
[47]
The accepted evidence as to the plaintiff’s
condition necessarily impacts on the probabilities assessment of his
ability to
continue to demonstrate the necessary fortitude to sustain
his present employment and to earn commission. The noted
deterioration
of the plaintiff’s mental state and the onset of
Persistent Depressive Disorder supports this outcome, as does the
revised
joint minute signed by the industrial psychologists (leaving
aside the Aslam approach, which is considered below).  He and

his wife were both good witnesses who testified openly and cogently
about the reality of the consequences of the accident on their

day-to-day lives.
[48]
The view that the plaintiff is ill-suited to
perform his current duties, even though they may be largely sedentary
in nature, is
endorsed by Dr Perry, who emphasised the various
adaptations and adjustments that would be required to the present
modus operandi
to make continued employment sustainable. Dr Perry was
an impressive witness whose opinion was grounded on a sound
foundation supported
by the evidence. The starting point for the
opinion was the fact that the plaintiff continues to experience
significant pain despite
a lengthy time-lapse from the time of his
surgical procedures. This was unusual and the condition was chronic
and intrusive. Degeneration
would continue with progressively more
pain in the spine and the future surgery anticipated by Dr Perry
would not remove the pain
or improve the situation. The expert view
that the plaintiff’s functional restrictions were permanent in
nature was properly
reasoned and cogently explained.
[49]
The reality of the plaintiff’s situation,
and the debilitating pain that he experiences, was abundantly clear
from his own
testimony and that of his wife. He has, for example,
literally been driven to drink having failed to find a suitable
alternative
pain management strategy. Dr Perry’s opinion was
logical and anchored by a solid scaffolding of supporting evidence,
including
other expert testimony, and accords with the probabilities.
It might be added for the sake of completeness that Dr Nobre also
impressed
the court with her explanation of the reasons underpinning
her conclusions, which included appropriate reflection on and proper

consideration of the bulk of the evidence that was presented in
court.
[50]
The
same cannot be said for Dr Aslam’s view, which was grounded on
a generic platform buttressed by anecdotal evidence and
isolated
facts pertaining to the plaintiff’s attempts to lead a normal
life after his accident. Even accepting that Dr Aslam’s
opinion
was based on his recollection and notes following a one-hour
consultation (and not a 30-minute consultation), the quality
of
investigation performed was lacking given the failure to consider
either of Meyer’s reports. The opinion was based on
an
incomplete foundation and appeared to assume an over-optimistic level
of future accommodation on the part of the employer without
due
consideration of all the facts. He also omitted to note the
psycho-emotional reference in the joint report of the occupational

therapists, which may have altered his opinion. The consequence is
that the opinion is not consistent with all the established
facts and
is thereby undermined. His view that the plaintiff would be able to
continue in his current position (i.e. without the
need for
additional accommodation) until a year or two before his normal
retirement date cannot be accepted when matched against
the
overwhelming evidence presented to the contrary and when viewed in
the light of the probabilities and subjected to the appropriate
level
of critical evaluation of the reasoning.
[22]
[51]
The court must, following careful consideration,
therefore express preference for the opinion of Dr Perry. In essence,
the picture
that emerges is that fully sedentary work, if
accommodated in a workplace, might be sustainable, but that it would
be unreasonable
to expect an employer to accommodate the plaintiff to
such an extent on an ongoing basis. It must be accepted that periodic
travel
to Gauteng is an inherent requirement of the plaintiff’s
job. Expecting the employer to accommodate the plaintiff to the
extent that such travel would not be required in future would be
unreasonable. This is supported by the industrial psychologists
and
Dr Nobre’s evidence that the level of accommodation that was
necessary was simply not sustainable:
‘
I
don’t believe that accommodation will be sustainable for the
remainder of his career, given his current age … [with]

another 25 years to go. [He is] struggling physically and
psychologically … the surgeons agree that [there has been a]
decline … [also] considering Meyer’s report … [he
is] in a worse category of mental disorder than he was initially.

Based on that decline, and practically, if you look at the emotional
energy [it takes him] to get through the day, that won’t

improve. It will worsen [and] he may reach a point where he won’t
cope and of his own accord be forced to resign.’
[52]
The
accepted evidence reveals that the stresses and strains of
work-related travel, including increased site visits, would push
the
plaintiff’s work beyond the realm of sedentary work, and that,
given various work-related developments, the plaintiff
could not
expect his work to be restricted to his home city. Continued
employment in the present occupation, beyond the immediate

short-term, was therefore unlikely. Considering the plaintiff’s
education, experience and skills, alternative placement in
the open
labour market was unlikely. The inability to settle on appropriate
pain management strategies and the resultant psychological

difficulties experienced by the plaintiff in pressing through the
various challenges required to commence and complete each working
day
and week, reinforce this conclusion.
[23]
[53]
Mr
Dala
,
for the defendant, argued in further submissions that the plaintiff
should ‘be able to push through’ with accommodations
in
the workplace and ‘push on’ with his employment.
Borrowing from the language in
Bee
,
while an outcome of no compensation for damage to earning capacity
might result in the plaintiff having no choice but to ‘soldier

on’, it is clear on a conspectus of the evidence that it would
not be reasonable to expect him to do so.
[24]
The
evidence of the reality of the plaintiff’s situation, emanating
from his own testimony and that of his wife, and overwhelmingly

supported by the accepted medical evidence, is that the plaintiff is
continuing in his present occupation to pay the bills and
that life
has become a burdensome struggle for him. As in
Bee
,
much of that evidence was uncontested and must be accepted as
truthful.
[25]
[54]
There
is, in sum, a sufficient evidential foundation to conclude that the
plaintiff’s bodily injuries suffered in the accident
will
result in his inability to earn the income he would have earned but
for those injuries, and that the reduction in earning
capacity gives
rise to pecuniary loss.
[26]
The
defendant’s argument that the plaintiff has failed on a balance
of probability to demonstrate that he would suffer a truncation
of
his working life must be rejected.
[55]
Given
the contents of the joint minute of the industrial psychologists, as
well as the evidence presented when considered in its
entirety, I
have no difficulty in concluding that loss of earning capacity has
been established. As Klopper has noted, where a
claimant’s
injuries do not totally preclude him to earn by pursuing his former
job, profession or career but his ability
to effectively and
effortlessly perform tasks required by his job or profession has been
impaired, provision has to be made for
this aspect as well as the
fact that due to his injuries he may not be assured of continued
employment.
[27]
At the
very least it is clear that, due to a combination of physical and
psychological factors following the accident, the career
advancement
the plaintiff, including progression to managing director, would have
expected had he not been injured, as detailed
in the industrial
psychologists’ joint minute, will no longer materialise.
[28]
The
consequences of this conclusion have been described as follows:
[29]
‘
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain
that pecuniary damage
has been suffered, the Court is bound to award damages.’
Determination of
contingencies
[56]
This
is not to suggest that the plaintiff’s condition is such that
he has no residual earning capacity or that the present
form of
employment is only due to the employer’s sympathy or
benevolence. As was the case in
Kerridge
,
there is no basis for the conclusion that the plaintiff has no
residual earning capacity whatsoever. Given the plaintiff’s

continued employment, and double promotion, such a finding would be
absurd.
Kerridge
also
considered the expert testimony of Meyer, who had suggested that Mr
Kerridge ‘is unemployable on the open market in a
competitive
position, although he may be able to continue in his current capacity
for some time yet’, along with other evidence
presented, before
concluding as follows:
[30]
‘
[53]
None of the above is suggestive of an individual who is unable to
work in any capacity. Even his wife agreed that Mr Kerridge
“handles
[himself] very well … [and] has learnt to live with [the
situation] and adapted to his shortcomings”.
As a result of the
Fund’s all or nothing approach, no expert evidence was led on
its behalf as to the claimant’s residual
earning capacity. Had
this been done, the court would have been in a more favourable
position to assess the damages suffered by
comparing the monetary
value of the pre-morbid earnings with those of the post-morbid
scenario. The shortfall, once the relevant
contingencies had been
applied to both hypothetical scenarios would be the total sum of Mr
Kerridge’s damages for future
loss of earnings capacity.
[54]  Instead we are
faced with a situation where our only option is to apply random
contingencies to the pre-morbid scenario
on an ad hoc and uninformed
basis to compensate for any possible post-morbid residual earnings
capacity …[by applying] higher
general contingency deductions
to allow for any residual earning capacity.’
[57]
Both
Mr Frost
and
Mr Dala
initially
agreed that the ‘
Kerridge
approach’ should be applied, in
the sense that it would be appropriate to apply higher contingencies
to the pre-morbid scenario
to compensate for any possible post-morbid
residual earnings capacity.
Mr Dala
subsequently withdrew that concession, persisting
in supplementary heads of argument with the view that the plaintiff
had failed
to demonstrate (any) truncation of his working life as
pleaded, and seemingly resorting to the ‘all or nothing’
approach
referred to in
Kerridge
.
[58]
The
court must use the best evidence produced to arrive at a conclusion
based on the information, even it if is inconclusive and
precise
mathematical calculation is elusive.
[31]
Following
Kerridge
,
various factors impact on the appropriate contingency deduction,
including the plaintiff’s age, limited education, extensive

working experience in the security installation industry, the normal
negative contingencies relevant to a wage earner, including

employability and loss of employment. To this must be added the
residual earning capacity.
[32]
[59]
There was no expert evidence led by the defendant
as to the plaintiff’s residual earning capacity. The
realisation of that
earning capacity may materialise in various ways
considering the plaintiff’s work history (including the senior
position
he occupies and the network he would likely have established
in the industry); good relationship with his present employer (which

might facilitate continued reasonable accommodation or even greater
forms of accommodation for a period of time); fortitude and

determination to provide for his family (which has seen him persevere
with his work, including work-related travel, for an extended
period
of time despite significant pain and discomfort). In sum, the
probabilities favour that the plaintiff will find ways to
continue to
earn an income, whether through his existing employer or by
leveraging his connections for his own account.
[60]
The
accepted medical opinions make it clear that the work must be
sedentary and accommodated, in the sense that there should be

appropriate flexibility, to be sustainable. This will reduce the
plaintiff’s future income-earning possibilities substantially.

As indicated, the evidence was that the plaintiff’s present
work does not fit the bill, given the present travel and site
visit
requirements. Bearing in mind the prognosis that his condition,
including his mental state, will deteriorate, and the effort
that is
required for him to perform his present duties, the probabilities are
such that the plaintiff will not be able to persevere
in his present
role until close to retirement age, as already explained. The
plaintiff cannot be expected to perpetually bite the
bullet, so to
say, in circumstances where he repeatedly feels worse as the working
day goes on, and as each week progresses.
[33]
The
precise duration of the present form of employment is uncertain, as
is evident from Dr Perry’s testimony and the joint
minute of
the occupational therapists. Following the industrial psychologists,
ongoing employment with the company beyond the immediate
short term
is improbable. As the employer was not called by either party to
testify, the extent to which the plaintiff might receive
greater
forms of accommodation, possibly with an accompanying salary
sacrifice or demotion, is unpredictable.
[61]
It is
this unpredictability in terms of establishing the likely future
income generation on the part of the plaintiff (including
the precise
nature of the work, its extent and the consequent remuneration
generation) that triggers the ‘
Kerridge
approach’
as appropriate, even though it appears as if adopting the
‘traditional approach’ would, in this instance,
result in
the same outcome. I am fortified in my decision to follow the
Kerridge
approach
when considering various decisions of this Division in similar
situations, as submitted by
Mr
Frost
,
including
Van
Eeden v The Road Accident Fund
.
[34]
In
that matter the plaintiff was 37 years of age and possessed the
‘residual ability to do some kind of sedentary work…’,

having in fact worked for two years after the accident. The court
noted that he had the ability to drive an automatic vehicle,
which
contributed to his potential employability, although it was found
that the plaintiff would probably find it physically impossible
to
cope with a whole variety of sedentary positions. Importantly, the
court did not have any evidence of the employment positions
that the
plaintiff would be able to cope with, what his chances would be of
being appointed in such positions and what his potential
income would
be from such positions.
[35]
Although
the court on the facts of that matter went as far as to find that he
had been rendered permanently unemployable in the
open labour market,
even in a sedentary position, as a result of his injuries, the
following factors were considered as part of
the appropriate
contingency deductions to be applied in assessing the claim for
future loss of earnings:
[36]
a.
The fact that the plaintiff did have a theoretical
ability to do some sedentary work in the future;
b.
The possibility that the plaintiff might possibly
in the future be favoured by a stricter application of the provisions
of the Employment
Equity Act, 1998 (‘the EEA’); and
c.
The fact that the plaintiff was in fact able to do
some limited work, and did earn some income, after the accident,
albeit with
great difficulty.
[62]
Noting
that the provision for contingencies falls squarely within the
subjective discretion of the trial judge to determine what
is
reasonable and fair, and that there are no fixed rules in this
regard,
[37]
the
court applied an increased contingency deduction (of 25%) in respect
of the plaintiff’s pre-morbid future earning capacity.
That
approach finds support in the earlier decision of
Krugell
v Shield Insurance
,
[38]
a case
where it was found that the plaintiff would in fact be able to work
again in the future, albeit on a limited and inconsistent
basis, and
which applied a contingency deduction of 35% of the pre-morbid
earning capacity. The comments of Van Dijkhorst J resonate
with the
facts of this matter:
[39]
‘
Op
die getuienis is dit nie uitgesluit dat die eiser weer ‘n
betrekking sal beklee nie, al is dit van ‘n mindere aard,
en al
is dit vir onderbroke tydperke…Ek is egter nie in staat om met
enige mate van sekerheid die tipe werk, die tydsduur
daarvan of die
vergoeding in verband daarmee te bepaal nie. In die woorde van Dr
Froman: “We are asked to be totally prophetic.”
Op
hierdie aspek van die saak kom ek terug by die behandeling van ‘n
toelating vir gebeurlikhede…Daar moet egter in
die berekening
voorsiening gemaak word vir inkomste uit hierdie bron…Dit is
‘n onwetenskaplike manier van doen, maar
myns insiens die
enigste om reg tussen die partye te laat geskied.’
[63]
In
Dolf
v Road Accident Fund
,
[40]
Roberson
J considered the situation of a plaintiff who had worked after the
accident and obtained a higher level of employment,
demonstrating
that, as is the case with the present plaintiff, he was not the type
of person who would ‘sit and do nothing’.
The learned
judge also applied an increased contingency deduction from the normal
15% for future loss of earning capacity.
[64]
In the
circumstances, and particularly because of the uncertainties in
determining the nature, extent, and remuneration of the plaintiff’s

future work, I am of the view that a similar approach is warranted.
This requires an assessment of the probabilities on consideration
of
the totality of evidence.
[41]
As
already indicated, I have specifically considered, distinct from the
facts in
Kerridge
,
[42]
the
plaintiff’s experience and standing in the industry in which he
is presently employed, as demonstrated by the senior position
he has
occupied and maintained even after his accident. It must be accepted
that the fortunes of life are not always adverse, so
that there is a
possibility that the plaintiff will be able to secure and settle into
the ideal form of sedentary work.
[43]
This
is offset somewhat by his limited qualifications and considering that
his recent experience has been restricted to a single
industry and
employer.
[44]
His
grit, determination and eagerness to provide at the maximum possible
level for his family also play a role in assessing the
probable
extent of his future income generation, bearing in mind the
plaintiff’s duty to mitigate damages.
[45]
I have
considered both the spirit and tenor of the
Employment Equity Act,
including
the categorisation of persons with disabilities as a
‘designated group’ deserving of affirmative action
measures on
the part of designated employers, including preferential
treatment,
[46]
as
well as the evidence relating to the limited application of equity
principles in practice at the present time.
[47]
I add
a further comment in this respect at the end of the judgment. It must
also be appreciated that the possibility of future work
is severely
limited by the restriction that the type of work should be sedentary,
and then with proper accommodation. I consider
a 35% contingency
deduction to the pre-morbid earnings to be appropriate in the
circumstances. Following the accepted actuarial
calculation provided
for this scenario, the consequence is that the plaintiff’s loss
in respect of future earnings, after
application of the statutory
limit, is assessed at R6 525 683.
[48]
Costs
[65]
As for costs, the matter was sufficiently complex
to warrant the use of two counsel, also considering the extent of the
claim for
damages.
Expert witnesses and
employment legislation
[66]
Finally, it should be noted that courts may expect
expert witnesses testifying about likely future employment in the
South African
labour market to demonstrate due appreciation of the
nuances of the ever-changing employment equity landscape, rather than
simply
resorting to over-generic expressions of existing practices
which emphasise only the racial dimensions of employment. This is
particularly
necessary in presenting a careful analysis of the likely
position of persons with disability. These persons fall within the
EEA’s
designated groups even though they may be white males.
Persons with disability may not be unfairly discriminated against,
inter
alia on the basis of their disability, would enjoy special
protection in terms of the
Labour Relations Act, 1995
in the event
that they are dismissed, including reinstatement as a primary remedy,
and may be the beneficiaries of affirmative
action measures on the
part of designated employers. Various legislative efforts and
pronouncements must affect their chances of
obtaining future
employment positively, and relevant expert witnesses should integrate
these considerations, where appropriate,
in their investigations and
testimony.
Order
[67]
The following order shall issue:
1.
Defendant shall pay to plaintiff the sum of
R6 525 683 for the plaintiff’s claim for future loss
of earning capacity.
2.
Payment of the aforesaid amount in paragraph 1,
above, shall be made directly to plaintiff’s attorney of
record, PBK Attorneys’
Trust Account, details of which are as
follows:
Name:  Pierre
Kitching Incorporated
Bank:  […]
Branch Code:  […]
Account No: […]
3.
Defendant shall pay interest on the aforesaid
amount in paragraph 1, above, at the prevailing prescribed interest
rate calculated
from a date 14 days after the granting of this Order,
in accordance with section 17(3)
(a)
of the Road Accident Fund Act, 1996 (Act 56 of
1996), as amended.
4.
Defendant shall pay plaintiff’s party and
party costs of suit on the High Court Scale from 3 February 2022 to
date hereof,
as taxed or agreed, such costs are to include:
4.1 The costs of all the
supplementary reports and joint minutes, to date, of:
4.1.1 Dr B N Perry;
4.1.2 Mr I Meyer;
4.1.3 Ms A van Zyl;
4.1.4 Dr M Nobre;
4.1.5 Mr D Williams;
4.1.6 Mr G Whittaker.
4.2 The qualifying fees,
expenses and reservation fees as well as the attendance and
testifying fees of:
4.2.1 Dr B N Perry;
4.2.2 Mr I Meyer;
4.2.3 Ms A van Zyl;
4.2.4 Dr M Nobre;
4.2.5 Mr D Williams;
4.2.6 Mr G Whittaker.
4.3 The reserved costs
arising out of the trial postponed for the previous hearing, 7 June
2022, and subsequent trial days including
any qualifying fees,
expenses and reservation fees of all of plaintiff’s expert
witnesses.
4.4 The costs arising out
of the trial set down for hearing on 13 February 2023 and subsequent
trial days.
4.5 The costs of
plaintiff’s attorney and counsel on attending at court on the
days on which the matter was argued in court,
including 6 March 2023
and 12 April 2023.
4.6 The reasonable costs
of consultations between plaintiff’s counsel, plaintiff’s
attorney, plaintiff and witnesses
in preparation for the trial.
4.7 The costs of
attendances at case management and roll call proceedings as well as
the costs of trial preparation checklists,
in respect of plaintiff’s
claim.
4.8 The costs of two
counsel, where so employed.
5.
Defendant is directed to pay interest on
plaintiff’s said taxed or agreed costs at the prevailing
prescribed interest rate
per annum calculated from a date 14 days
after
allocator
or
written agreement to date of payment.
6.
The contingency fee agreement between plaintiff
and Pierre Kitching Incorporated t/a PBK Attorneys concluded on 1
February 2018
be and is hereby declared invalid and set aside.
7.
Plaintiff’s attorneys shall be entitled to
recover from plaintiff his taxed attorney and own client costs on the
High Court
Scale.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
13 – 17 February; 6 March; 12
April 2023
Delivered:
25 April 2023
Appearances:
For
the Plaintiff:
Adv
A Frost
Club
Chambers
Instructed
by:
PBK
Attorneys
Plaintiff’s
Attorneys
22
Hurd Street
Newton
Park
Gqeberha
Tel:
041 365 5955
For
the Defendant:
Adv
I Dala
Club
Chambers
Instructed
by:
State
Attorney, Gqeberha
Attorneys
for the Defendant
29
Western Road
Central
Gqeberha
Tel:
041 585 7921
[1]
The
defendant was ordered to pay the plaintiff the sum of R761 751
in full and final settlement of plaintiff’s claim
for general
damages and past loss of income.
[2]
These
documents include the RAF1 medical report by Dr J Leeching (28
February 2018); the hospital records from Life St George’s

Hospital (2017); Gardmed Ambulance report (30 November 2017);
clinical records compiled by neurosurgeon, Dr FJ van Aarde (2017);

clinical records of orthopaedic surgeon, Dr HJ de Jongh (2018);
clinical record of physiotherapist, H Elkington (2018); radiology

report by Dr D Meintjies (undated); radiology report of Dr E Rabe
(undated) and radiology report by Dr H Vawda (undated).
[3]
The particulars of claim add that the plaintiff’s future
post-morbid earnings will, at best, be similar to his current

earnings of around R50 000 per month, plus commission and a
13
th
cheque.
[4]
These
assessments were conducted on 9 January 2020 and 7 May 2021. A
‘refresher’ consultation during the afternoon
of 8
February 2023 did not result in a report given distress and pain
experienced by the plaintiff at that time. Meyer also consulted
with
the plaintiff’s wife on all occasions, and had regard to the
various medico-legal reports available at the time.
[5]
The
therapists agreed to defer to the Clinical Psychologists in respect
of the plaintiff’s psycho-emotional difficulties,
and to the
Industrial Psychologist regarding his work potential and loss of
earnings.
[6]
The
additional pre-trial minute filed on 10 January 2023 reflects that
Van Zyl had had sight of the joint minute prepared by the

orthopaedic surgeons (dated 30 August 2022) and did not intend
amending the therapists’ joint minute. It was agreed that
the
defendant would revert as to whether Maka had had sight of the
orthopaedic surgeons’ joint minute and whether she wished
to
add anything further to the joint minute she had signed with Van
Zyl.
[7]
Road
Accident Fund v Kerridge
2019
(2) SA 233
(SCA) (‘
Kerridge
’
)
para 40.
[8]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 113F-114A.
[9]
Bee
v The Road Accident Fund
[2018]
ZASCA 52
(‘
Bee
’
)
para 66.
[10]
Thomas
v BD Sarens (Pty) Ltd
[2012]
ZAGPJHC 161 paras 9-13.
[11]
See, for example,
Bee
op cit fn 9 para 64.
[12]
The
position may be different if a trial court is for any reason
dissatisfied with the agreement and alerted the parties to the
need
to adduce evidence on the agreed material:
Bee
op
cit fn 9 para 73. Wallis JA, in a separate concurring judgment in
HAL
obo MML v MEC for Health, Free State
2022
(3) SA 571
(SCA) (‘
HAL
’
)
para 229, explains the position as follows: ‘In accordance
with
Bee
,
if they agree on issues of fact and the appropriate approach to
technical analysis, the litigants are bound by those agreements
…
If the experts have reached agreement on a common opinion on a
matter within their joint expertise, that is merely part
of the
total body of evidence. The court must still determine whether to
accept the joint opinion.’
[13]
Bee
op
cit fn 9 para 73.
[14]
Kerridge
op cit fn 7 para 50.
[15]
See
HAL
op
cit fn 12 para 53. Also see
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
(SCA);
[2002] 1 All SA 384
para 36.
[16]
JA
obo DMA v The Member of the Executive Council for Health, Eastern
Cape
[2022]
2 All SA 112
(ECB);
2022 (3) SA 475
(ECB) (‘
JA
obo DMA
’
)
para 12 and following.
[17]
JA
obo DMA
ibid
para 17.
[18]
Ibid.
[19]
Ibid
.
[20]
MF
v Road Accident Fund
2023
(1) SA 52
(SCA) para 35.
[21]
See
JA
obo DMA
op
cit fn 16 para 42.
[22]
See
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) para 27.
[23]
For
a similar analysis and conclusion on the probabilities, see the
judgment of the full court of this Division in
Prince
v Road Accident Fund
[2018]
ZAECGHC 20 para 61 and following.
[24]
Bee
op
cit fn 7 para 111.
[25]
Bee
op
cit fn 7 para 112.
[26]
See
JM Potgieter
et
al
Visser
and Potgieter Law of Damage
(3
rd
Ed)
(Juta) (2012) at 464-465.
[27]
HB
Klopper
The
Law of Third-Party Compensation
(4
th
Ed)
(LexisNexis) (2020) at 217.
[28]
The industrial psychologists agreed that pre-morbidly, the plaintiff
would have progressed to function as a managing director
by January
2029. Dr Nobre and Mr Kalanko agreed that for purposes of the
plaintiff’s pre-morbid earnings as a managing
director a basic
salary of R80 000 per month, average annual commission of
R250 000 and a thirteenth cheque in December
(in 2020 terms)
increasing in line with CPI plus 1% to 2% until retirement was to be
used.
[29]
Kerridge
op
cit fn 7 para 25, quoting
Hersman
v Shapiro & Co
1926
TPD 367
at 379, these aspects of the minority judgment seemingly
being unanimously agreed to by the bench: para 39. Also see
Southern
Insurance Association Ltd v Bailey NO
op
cit fn 8 at 113F – 114E.
[30]
Kerridge
op
cit fn 7 para 53.
[31]
Esso
Standards SA (Pty) Ltd v Katz
1981
(1) SA 964
(A) at 970D-H.
[32]
See
Kerridge
op
cit fn 7 para 55.
[33]
Bee
op
cit fn 9 para 111.
[34]
Van
Eeden v The Road Accident Fund
(
Unreported
case no. 2069/2011) (‘
Van
Eeden
’
).
[35]
Van
Eeden
op
cit fn 34 para 62.
[36]
Van
Eeden
op
cit fn 34 para 64.
[37]
Van
Eeden
op
cit fn 34 para 67. Also see
Kerridge
op
cit fn 7 para 40;
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA) para 8: the court enjoys a large discretion to
order what it deems appropriate even where actuarial calculations
are available
to assist the enquiry. Also see
Goodall
v President Insurance Co Ltd
1978
(1) SA 389
(W) at 392H - 393A.
[38]
Krugell
v Shield Insurance
1982
(4) SA 95
(T) (‘
Krugell
’
)
at 100B.
[39]
Krugell
op
cit fn 38 at 99G–H; 100B-C; 105E-F.
[40]
Dolf
v Road Accident Fund
[2014]
ZAECPEHC 99 para 15. Also see
N
D B obo J W K v Road Accident Fund
[2023]
ZAECQBHC 7 para 57.
[41]
See
MF
v Road Accident Fund
op
cit fn 20.
[42]
Kerridge
op
cit fn 7 para 55. In
Kerridge
the
plaintiff had a limited work history, no real work record and no
good prospects of achieving success in his field.
[43]
See
Southern
Insurance v Bailey
op
cit fn 8.
[44]
The
joint report between the industrial psychologists, dated 27 January
2022, reflects that his full employment history includes

‘unqualified electrician, technician, senior technician and
also self-employed for a short period.’
[45]
For a recently reported instance where this factor was considered as
part of a contingency assessment, albeit in distinct circumstances,
see
the judgment of Kroon AJ in
PE
v Dr Beyers Naude Local Municipality and Another
2022
(1) SA 560
(ECG) para 145.
[46]
See
s 15 of the EEA.
[47]
There
was no evidence or argument on whether the plaintiff’s
employer was a designated employer, as defined in the EEA,
or on the
implications of the EEA’s emphasis on ‘duties of
designated employers’ and the implications of this
on the
plaintiff’s future employment prospects.
[48]
It
is interesting to note that, based on actuarial calculations
provided in the present matter, even assuming that the plaintiff

would retain employment with his current employer, but on a demoted
basis as a sales representative and work in that capacity
until an
early retirement age of 60, this would be the amount payable to the
plaintiff for future loss of earnings capacity applying
a 15%
pre-accident contingency and irrespective of whether 25%, 35% or 45%
is used as a post-accident contingency figure. The
reason for this
is the application of the statutory limit to the total net loss in
each instance, assuming the plaintiff’s
future income (even in
his injured state) to be in the region of R5,4 million, which is
equal to R450 000 per annum from
1 April 2023 until the age of
60, with inflationary increases. The similar loss is established,
according to actuarial calculations
provided, assuming demotion to
Area Manager earning R737 162 per annum from 1 April 2023 until
the age of 60, applying a
50% contingency deduction given the poor
prospects.