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[2023] ZAGPPHC 432
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Shezi v Road Accident Fund [2023] ZAGPPHC 432; 22540/2017 (25 May 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No.: 22540/2017
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
DATE:
26 MAY 2023
SIGNATURE:
In
the matter between:
LYNETTE
ZANELE SHEZI

Plaintiff
and
ROAD
ACCIDENT FUND

Defendant
JUDGMENT
KHWINANA
AJ
INTRODUCTION
[1]
The plaintiff, Ms Lynette Zanele Shezi
instituted action proceedings in her personal capacity against the
defendant for damages
in terms of the
Road Accident Fund Act 56 of
1996
, pursuant to a motor vehicle collision.
[2]
The merits and quantum as well as general damages were previously
resolved at 80%
in favour of plaintiff. The plaintiff approaches this
court for Past and future loss of earnings determination.
[3]
I am therefore ceased with determination of loss of earnings only.
BACKGROUND
[4]
The plaintiff was involved in a motor vehicle collision that occurred
on 21 February
2016 wherein she was being side swiped from behind.
The plaintiff lost control of her vehicle and her vehicle thereafter
overturned.
The plaintiff sustained injuries as a result of the said
motor collision.
[5]
The plaintiff was employed as a
senior administrator clerk and her work performance was
outstanding.
She stood a good chance of being considered for promotions, namely,
senior administration officer.
[6]
The consequence of the injuries sustained in the motor vehicle
collision, are that
the plaintiff struggled to cope with her work
demands post- accident especially because of her poor vision in the
right eye.
[7]
The plaintiff had various problems:
1.
She did not submit her work on time.
2.
She required assistance to complete work tasks.
3.
She relies on colleagues.
4.
She could only perform work that did not require her to sit in front
of a computer.
[8]
The plaintiff was accommodated and based on the employer, the
plaintiff is
unlikely
to be considered for promotion considering her challenges.
INJURIES
SUSTAINED
[9]
The plaintiff sustained the following injuries:
1.
Head injury;
2.
Right eye injury; and
3.
Disfigurement and Degloving injuries.
DR
MAZWI
NEUROSURGEON
[10]
The plaintiff sustained a mild head injury. The neurological
examination, found  that the
plaintiff has complete right eye
blindness and difficulty with  concentration. The plaintiff has
significant memory disturbances
and suffers from recurrent
post-injury severe headaches. The Neurosurgeon opines that the
plaintiff’s whole-person impairment
is 45% and noted that there
is a significant long-term mental disturbance
MS
N NQHAYI
CLINICAL
PSYCHOLOGIST
[11]
She opines that the plaintiff decreased intellectual capacity and
areas of difficulty in various
domains of neurocognitive functioning
including:
1.
Inadequate attention and concentration.
2.
Impaired mental tracking abilities and complex attention.
3.
Inadequate double tracking and working memory.
4.
Impaired mental processing, psychomotor speed, and visual tracking.
5.
Inadequate sustained attention and auditory divided attention.
6.
Variable immediate verbal memory and adequate long-term verbal
memory.
7.
Moderate PTSD symptoms, moderate depression, and anxiety.
[12]
She says the plaintiff demonstrated mild neurocognitive impairments
and  depletion in her
neuropsychological abilities that are
compatible with a mild head injury compounded by emotional
difficulties. She says this has
limited the plaintiff’s
enjoyment of life. She opines that plaintiff is suffering from
moderate PTSD symptoms with co-morbid
depression and anxiety which is
attributable to the sequelae of the trauma she experienced and the
result of the accident. The
plaintiff is uncomfortable around people
as a result she isolates herself, has low self-esteem, lives with
sadness, chronic pain
and poor self-image. Her prognosis is poor.
DR
NHLAPO
OPHTHALMOLOGIST
[13]
The plaintiff sustained an injury to the right eye; a fracture of the
right orbital roof with
a right extraconal foreign body, proptosis
with inferior dystopia, and right superior rectus impingement. The
plaintiff has a 3cm
penetrating laceration on the right supra-orbital
region. Ophthalmological examination revealed no light perception,
normal vision
for far objects is 1.0 with or without correction, no
binocular single vision, poor depth perception, a 6cm curvilinear
horizontal
scar on the right upper lid, right
exotropia of 35
prism dioptres, pigmented conjunctiva.
[14]
The plaintiff suffers from the following sequelae signs of blunt
trauma to the anterior segments
and the cornea is clear. The anterior
chamber is open and clear. There are sphincter tears on the pupil
margin. The pupil is dilated
with an afferent pupil defect. The lens
is clear. The intraocular pressures are 17mmHg. On fundoscopy, the
optic disc is pale,
and the retinal blood vessels are attenuated. The
plaintiff has been diagnosed with Traumatic Optic Neuropathy, a blind
right eye.
right exotropia.
[15]
The Ophthalmologist recorded the plaintiff’s whole person
impairment (WPI) is 24% with
permanent impairment of the visual
system and permanent impairment of the whole person which is based on
the following functions
of the eye corrected visual acuity for near
and for far objects. The visual field perception and ocular motility
and diplopia.
LOSS
OF EARNINGS AND OR EARNING CAPACITY
LEGAL
POSITION
[16]
Counsel Haskins for the plaintiff submits that in Rudman v Road
Accident Fund
[1]
the court held
that “To claim loss of earnings or earning capacity, a
plaintiff must prove the physical disabilities resulting
in the loss
of earnings or earning capacity and also actual patrimonial loss”.
The measure of proof is a preponderance of
probabilities, which
entails proving that the occurrence of the loss is more likely than
not. In the matter of Union and National
Insurance Co Limited v
Coetzee
[2]
the court held that
there must be proof that the disability gives to a patrimonial loss,
which in turn will depend on the occupation
or nature of the work
which the patient did before the accident or would probably have done
if he had not been disabled.
[17]
In Hendricks v President Insurance Co Ltd
[3]
Selikowitz J held that
“
The
principle applicable to the assessment of damages has as its ratio
the policy that the wrongdoer should not escape liability
merely
because the damages he caused cannot be quantified readily or
accurately. The underlying premise upon which the principle
rests is
that the victim has, in fact, suffered damages and that the wrongdoer
is liable to pay compensation or solatium”.
[18]
In Mvundle v RAF,
[4]
Kubushi J
stated that:
“
It
is trite that damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial
loss in
that his or her employment situation has manifestly changed. The
plaintiff’s performance can also influence his/her
patrimony if
there was a possibility that he/she could lose his/her current job
and/or be limited in the number and quality of
his/her choices should
he/she decide to find other employment.
[19]
In RAF v Guedes
[5]
the court
stated that “
“
In
assessing damages for loss of earnings or support, it is usual for a
deduction to be made for general contingencies for which
no explicit
allowance has been made in actuarial calculation. The deduction is
the prerogative of the Court. (My emphasis)
[20]
It is trite that the percentage of the contingency deduction depends
upon a number of factors
and ranges between 5% and 100%, depending
upon the facts of the case
[6]
.
[21]
In the leading case of Southern Insurance Association Ltd v Bailey
[7]
the Court stated:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative… All that the Court can do is to make
an estimate,
which is often a very rough estimate, of the present value of the
loss. It has open to it two possible approaches.
One is for the Judge
to make a round estimate of an amount which seems to him to be fair
and reasonable. That is entirely a matter
of guesswork, a blind
plunge into the unknown. The other is to try to make an assessment,
by way of mathematical calculations,
on the basis of assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the
assumptions, and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork
to a greater or lesser extent. But the
Court cannot for this reason adopt a non possumus attitude and make
no award.”
[22]
According to AA Mutual Insurance v Van Jaarsveld
[8]
the court has a discretion in allowing contingencies. The Court has a
wide discretion that must, however, be based upon a consideration
of
all the relevant facts and circumstances. Justice and fairness for
the parties is served by contingencies to be applied on the
proven
facts of the case. The discretion of the Court may not be usurped by
the evidence of the experts such as the actuary. Actuaries’

evidence only serves as a guide to the Court.
[9]
There are many factors that come into calculation such as the
possibility of forced retirement before the age of 65, the
possibility
of death before 65 years of age, the likelihood of
suffering an illness of long duration, unemployment, inflation and
deflation,
and alteration in cost.
[23]
In Phalane v Road Accident Fund
[10]
it was ruled that:
Contingencies
are the hazards of life that normally beset the lives and
circumstances of ordinary people (AA Mutual Ins Co v Van
Jaarsveld
reported in Corbett & Buchanan, The Quantum of Damages, Vol II
360 at 367) and should therefore, by its very nature,
be a process of
subjective impression or estimation rather than objective calculation
(Shield Ins Co Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H).
[24]
Contingencies for which allowance should be made would include the
following:
(a)
the possibility of illness that would have occurred in any event;
(b)
inflation or deflation of the value of money in the future; and
(c)
other risks of life such as accidents or even death, which would have
become a reality, sooner or later, in any event (Corbett,
The Quantum
of Damages, Vol I, p 51).
[25]
Counsel submits that the ‘once and for all’ principle
determines that a plaintiff
only has one chance to claim all past and
potential damages flowing from a single cause of action. When courts
make awards for
potential or future losses, it is general practice to
make use of contingency deductions to provide for any future events
or circumstances
which is possible but cannot be predicted with
certainty such as longevity, loss of employment, early death, or
promotion prospects.
[26]
In order to determine a plaintiff’s claim for future loss of
income or earning capacity,
it becomes necessary to compare what the
claimant would have earned ‘but for” the incident with
what he would likely
have earned after the incident. The future loss
represents the difference between the pre-morbid and post-morbid
figures after
the application of the appropriate contingencies.
[27]
The Plaintiff’s future employability is an important
consideration and the associated risks
as identified by the experts.
The Plaintiff’s physical injuries and how those injuries impact
her working capacity is also
an important consideration. Future
treatment required and whether the Plaintiff would be  able to
recover. The likelihood
of the Plaintiff being fired or retrenched.
The fact that the plaintiff has an unsatisfactory service record. The
possibility of
mistakes having been made in the determination of the
life expectancy or earning life expectancy of the Plaintiff. The
likelihood
of illness.
[28]
These factors must be juxtaposed against the injuries sustained by
the plaintiff in the accident
and more importantly the causal link
between those injuries and the impact that it has on the plaintiff’s
earning capacity.
General contingencies cover a wide range of
considerations, which vary from case to case and there are no fixed
rules as regards
general contingencies. Robert Koch provides the
following guidelines:
Sliding
scale: ½ % per year to retirement age, i.e. 25% for a child,
20% for a Youth, and 10% in middle age. Normal contingencies:
the RAF
usually agrees to deductions of 5% for past loss and 15% for future
loss. Case law in support of higher post-morbid contingency

deduction.
[29]
In Ubisi v Road Accident Fund
[11]
the Court, in awarding a pre-morbid
contingency
deduction of 20% and a post-morbid deduction of 50%
stated
that:
“
On
the value of income having regard to the accident it is submitted
that a higher than usual contingency of 70% be applied,

considering the opinion of Dr Blignaut, the defendants expert, with
whom Dr Booysen concurs that even after surgery he does not
think
that the plaintiff will be able to compete or secure work in the open
labour market. The plaintiff has shown resilience on
the objective
facts, albeit conflicting at times by seeking employment
unconstrained by his medical deficits”.
[30]
Counsel submits that the plaintiff will henceforth
primarily depend on sympathetic employment. This finding
is in view
of the fact that the plaintiff would be disadvantaged in an open
labour market and thus should weigh in against her.
The
plaintiff has a grade 12 level of education and obtained various
in-house training certificates. The plaintiff was working
towards a
diploma in public relations. Upon completion of her studies, the
plaintiff could have been promoted or secured better
employment in
the open labour market. The plaintiff would therefore have earned
between median and upper quartile of Paterson B4.
With added
experience, the plaintiff was likely to have progressed and reached
her career ceiling of Paterson C2/C3 when she reached
55 years.
Thereafter normal inflationary earning increases would have been
applicable up until retirement age 65.
POST-MORBID
POTENTIAL
[31]
The plaintiff’s reported headaches will have a detrimental
effect on her concentration
and may negatively influence her work
ability to work to her full potential and will render her prone to
errors and negligent mistakes
which will affect her work quality and
competence. Her forgetfulness will have similar effects. The
plaintiff did not complete
her practical in order to complete her
diploma. She also performs her work tasks slower and requires more
time to comprehend tasks.
The emotional impairments (especially PTSD)
have negatively affected her. The plaintiff’s employment
potential is further
compromised due to her poor vision.
[32]
Even though the plaintiff is still employed, based on the collateral
information obtained, the
plaintiff is not performing her duties as
pre-accident. She is therefore being accommodated and there are no
prospects of promotions.
The industrial psychologist notes that
although the plaintiff is sympathetically employed, should the
challenges persist, she is
at risk of losing her employment which
will result in her remaining unemployed for the remainder of her work
life, or she will
not be able to continue to work until age 65
because of the injuries.
ACTUARIAL
CALCULATION
[33]
The Actuaries calculated the plaintiff’s loss as follows:
Past
loss
Value
of income uninjured

R 1 513 915.00
Less
Contingency deduction 5%

R      75 695.10
R 1 438 219.25
Value
of income injured

R 1 222 681.00
Less
contingency deduction
10%
R
122 268,00
R 1 100 412.90
NET
PAST LOSS

R
337 806.35
Future
Loss
Value
of income uninjured

R 5 641 856.00
Less
contingency deductions
15%

R    846 278.40
R 4 795 577.60
Value
of income injured

R 3 156 195.00
Less
Contingency deduction       40%

R 1 893
717.00
R 1
262 478.00
NET
TOTAL LOSS

R 3 533 099.60
NET
TOTAL LOSS

R 3 870 905.95
ANALYSIS
[34]
I have considered all the facts as alluded to by the medical experts.
It is evident that the
plaintiff will still be able to work however
she has been compromised. She can no longer compete with other abled
bodies. Her opportunities
for promotion have been diminished. She has
been unable to finalise her diploma.  The contingencies
calculation are merely
a guideline by their nature. They are a
process of subjective impression or an estimation rather than
objective calculation.
[35]
The plaintiff was is 51 years of age and would have retired at 65
years, but for the accident.
This means the relevant period of risk
for purposes of determining a contingency deduction is 14 years. It
is imperative to mention
that the plaintiff is not a youth, nor a
middle-aged person. I have considered the calculations as postulated
and I have not interfered
with the past loss of earnings as alluded
therein. I however have in relation to future loss of earnings
applied twenty (20%).and
ten (10%) contingencies which I regard as
fair and reasonable under the circumstances.
[36]
The calculations are projected below as follows:-
Future
Loss
Value
of income uninjured

R 5 641 856.00
Less
contingency deductions
20%

R 1 128 371.20
R
4  513 485.80
Value
of income injured

R 3 156 195.00
Less
Contingency deduction       10%

R
315 619.50
R
2  480 575.50
NET
TOTAL LOSS

R 1  672 910.30
ADD
PAST
LOSS

R     337 806.35
NET
TOTAL LOSS

R 2  010 716.65
[37]
In the result, I grant the following order:
1.
Loss of earnings       R 2010 716.65
(less 20%)
2.
Costs on a party and party scale
The
draft order attached hereto and marked “X” an order of
Court
ENB KHWINANA
ACTING JUDGE OF NORTH
GAUTENG HIGH COURT, PRETORIA
Counsel
for Plaintiff:
Adv
Lizelle Haskins
Date
of Hearing:
26
February 2023
Date
of Judgment:
25
May 2023
[1]
2003
SA 234
SCA
[2]
1970
(1) SA 295
(A) AT 300 A
[3]
ZASCA
2014 182 paragraph11
[4]
Unreported North Gauteng High Court case 63500/2009 (17 April 2012)
[5]
2006(5)
SA 583 paras 9-10
[6]
AA
Mutual Insurance v van Jaarsveld 1974 (4) SA 729 (A)
[7]
1984
(1) SA 98
(A) 113H-114E
[8]
1974
(4) SA 729 (A)
[9]
RAF
v Guedes
2006 (5) SA 583
(SCA) at para 8
[10]
948112/2014) 2017 ZAGPPHC 759 ( 7 NOVEMBER 2017)
[11]
(31563/2014) [2014] ZAGPPHC 453 PARA 11