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2023
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[2023] ZAFSHC 188
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Prinsloo v Road Accident Fund (4842/2020) [2023] ZAFSHC 188 (19 May 2023)
FLYNOTES:
ACTUARIAL – Loss of income – Residual capacity –
Multiple and severe injuries – Aged 25
at time of accident
on motor-cycle – Loss of upper limb functionality –
Chronic pain affecting psychological
state – Possibility
that chronic pain and emotional behavioural challenges can be
minimised with treatment and counselling
– Plaintiff could
then manage light sedentary work – 5% contingency for past
loss of income and 25% for loss
of future earning capacity.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 4842/2020
In
the matter between:
PIETER
PRINSLOO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
BEFORE:
CHESIWE,
J
HEARD
ON:
31 JANUARY, 1 FEBRUARY & 15
FEBRUARY 2023
DELIVERED ON:
This judgment was
handed electronically by circulation to the parties’
representatives by email. The date and time for hand-down
is deemed
to be at 13h00 on 19 May 2023.
[1]
The Plaintiff, a 25 year old male has instituted a claim
for damages
against the Defendant as a result of a collision that occurred on 20
April 2018. At the time of the collision, the
insured driver collided
head on with the Plaintiff’s motor cycle.
[2]
The Plaintiff sustained multiple injuries namely, pulmonary
conclusions, right humerus fracture, right open radius and ulna
fracture with dislocation of the right wrist, right femur fracture,
traumatic amputation of the right small toe, right transverse process
fracture of L3 – L5, soft tissue injury of the perineum,
laceration of the scrotum and left groin area, bruises and laceration
on head face, left knee and lower leg, complete plexus C5
– T1
with severe neuropathic pain.
[3]
Due to the
injuries sustained, the Plaintiff lodged a claim on 14 December
2020.
[1]
The issue of the
merits and liability was settled on 30 January 2019 in favour
of the Plaintiff at 90/10 percentage.
On 31 January 2023, the issue
of future medical expenses as well as the claim for general damages
was settled.
POSTPONEMENT
[4]
On the day of the trial, that is 31 January 2023, the
Defendant made
an application from the bar for a postponement on the basis that the
Plaintiff be allowed to undergo a medical procedure
as proposed by Dr
Russel P Raath (Plaintiff’s Specialist –
Anaesthesiologist/Pain Management Practitioner)
[5]
Counsel on behalf of the Defendant Ms Gouws, in oral
submission
contended that the Plaintiff be re-evaluated in order to determine
the Plaintiff’s future income capacity and
whether the
Plaintiff can agree to the suggested pain management procedure.
[6]
Counsel on behalf of the Plaintiff Adv. Cilliers opposed
the
application and contended that the procedure itself is risky and
there are no guarantees that the Plaintiff will not experience
any
pain in the future. Counsel quoted from Dr Raath’s report as
follows:
“
2.
So, we implant a Spiral Cord Stimulator, which is an electrode that
is implanted in the epidural space, very high up, right up
to the C2
and with electrical stimulation from a device, almost like a
pacemaker, which is planted like a pacemaker. We can actually
block
some of the pain impulses coming from the inflamed dorsal horn of the
spine and prevent them reaching the brain where pain
is felt and
localised. The device with the drip therapy is reasonably effective
and will relieve the patient’s pain.”
I
will not be so pretentious or arrogant to say that we will make the
patient pain free, but will definitely make his pain …
[7]
I pause to mention that, I requested Adv. Cilliers to
take
instructions, whether the Plaintiff was willing to undergo the pain
management treatment by Dr Raath. Court then adjourned
for a few
minutes to make the determination. When court resumed, Adv. Cilliers
informed the Court that the Plaintiff is not emotionally
and
physically ready to undergo the said treatment. Counsel placed on
record that the treatment has a high risk of infections and
that the
device is battery operated and depended on WiFi and it is for these
reasons that the Plaintiff is not willing to take
the risk.
[8]
Ms Gouws conceded that it will not be necessary to postpone
the
matter if the Plaintiff was not willing to undergo the pain
management treatment.
[9]
The application for postponement was therefore dismissed
with costs
reserved. Indeed, it is correct that the Plaintiff cannot be forced
to undergo treatment he feels is risky. This Court
cannot force or
order the Plaintiff to undergo any treatment.
[10]
The parties
by agreement accepted the various expert reports of the Plaintiff as
well as the two expert reports for the Defendant.
The joint minutes
of the Industrial Psychologists and the Occupational Therapists were
also accepted by agreement, including the
actuarial report of Mr
Ashwin de Koker.
[2]
EVIDENCE
[11]
The trial proceeded only with the evidence of Mr. BPG Maritz, the
Industrial
Psychologist of the Plaintiff and he testified that the
Plaintiff was an apprentice before the accident and was permanently
employed
as a qualified mechanic. Maritz confirmed that he and Dr T
Kalanko (Industrial Psychologist for the Defendant) had considered
all
the available medico-legal reports and came to the conclusion
that the Plaintiff is unemployable in the open labour market
following
the injuries the Plaintiff sustained. Furthermore, that the
Plaintiff based on his injuries, is highly improbable that he will be
able to earn any form of income in the future.
[12]
Under cross-examination, Mr. Maritz confirmed that the Plaintiff is
unemployable
when having regard to all reports including the report
of the Orthopaedic Surgeon Dr LF Oelofse, who cannot determine the
Plaintiff’s
employability. On the question of gainful
employment, Mr. Maritz explained that the Plaintiff may be able to
generate an income
to sustain a living, but in the Plaintiff’s
case, it will not be probable due to his injuries. Mr. Maritz
mentioned that
a sympathetic employer may employ the Plaintiff, but
this will involve continuous sick leave, and the Plaintiff will not
make it
in a working environment for the job he is qualified in. That
was the Plaintiff’s case and the Defendant closed its case
without calling any witnesses.
ISSUE
FOR DETERMINATION
[13]
The issue for determination is the Plaintiff’s claim for loss
of
past earnings and earning capacity moreover the future and the
applicable contingency.
[14]
Adv. Cilliers in oral closing argument, submitted that the issue
raised
by the Defendant in the heads of argument regarding gainful
employment of R 2 000-00, was put to Mr. Maritz and had no basis.
That
the joint minutes of the Industrial Psychologist concluded that
the plaintiff is unemployable. Counsel submitted that the Industrial
Psychologists agreed on the future income. The joint minutes were
accepted by the Defendant and no dispute was raised by the Defendant
and further submitted that the applicable contingencies for past loss
of income be 5% and 20 % for the injured scenario of future
loss.
[15]
Ms Gouws submitted that the Court should request a recalculation for
the past morbid, based on the amputation that the Plaintiff is not
wholly unemployable. She said the Plaintiff is unemployable due
to
the injury on the right arm and that the Plaintiff elected to reject
the report of Dr Raath on the pain management, further
that the
Plaintiff refuses to take the advice of Dr Raath. Ms Gouws mentioned
that the procedure is not experimental and is for
the benefit of the
Plaintiff. Ms Gouws submitted further that Mr. Maritz did not take
into consideration that the Plaintiff was
able to do light duty with
a minimum wage of R2 000-00 and it is for this reason that the
actuarial is to update its report taking
into account the minimum
wage post morbid scenario. Ms Gouws indicated that contingencies pre
morbid be a deduction of 20% and
in respect of future loss of income
a contingency of 55% be applicable.
PLAINTIFF’S
EXPERT REPORTS
[16]
On day two (2) of the trial (1 February 2023), the Defendant accepted
the Plaintiff’s expert reports, including the joint minutes of
the Occupational Therapists and the Industrial Psychologists.
[17]
The
Plaintiff’s expert, Dr Oelofse
[3]
stated in his report as follows:
“
14
EMPLOYMENT
14.1
Sick Leave
…
. The patient must be
accommodated in a STRICT light duty /neck and back-friendly
environment with IMMEDIATE EFFECT as determined
by an Occupational
Therapist.
14.2
… . I believe that his multiple, serious orthopaedic injuries
had a severe impact on the patient’s amenities of
life,
productivity and working ability, and will continue to do so in the
future.
Critical
factors that might play a role in the patient’s future working
environment can be the following.
Injuries:
·
Permanent deficits from his multiple orthopaedic injuries will
remain, especially the injury of his right arm.
·
It is highly unlike that his productivity will increase with
successful treatment of his right arm injury as he will most likely
regain very little function even with successful treatment.
·
It is my opinion that the patient has developed Chronic Pain
Syndrome, resulting from his neck, back and right arm injuries.
Studies
on chronic pain agree that this, very resistant syndrome, also hurts
productivity.
The
patient will most probability have chronic pain (at least 75%) for
the rest of his life with periodic flare-ups that will necessitate
treatment, medication and sick leave. This can happen 2 (two) to 4
(four) times per year;
·
Even with successful treatment, he will most probably always have
chronic pain.
·
As the degeneration in his right wrist and knee progresses, as
well as with the development of spondylosis in his neck and back,
this will contribute to his state of chronic pain for the rest of his
life.
[18]
Stephen
Ferreira-Texeira (Clinical Psychologist
[4]
,
opined as follow:
8.4.3
Occupationally
His
overall mood and PTSD symptoms may result in him being less
motivated and driven overall. This, in turn, may hamper his
employment opportunities and render him vulnerable in any
employment situation.
[19]
Dr Raath in
his report (216 – 237),
[5]
concluded as follows:
“
This
patient is disabled, almost completely by pain. … My
conclusion, therefore, it is that this patient is extremely disabled
by pain.”
[20]
Narischa
Doorasamy (Occupational Therapist)
[6]
,
opined that:
“
2.4
Work history
b.
At the time of the accident, the client was employed by A.C.D as a
Panel Beating Apprentice. Following the accident, the client
reports
that he was off work for one and a half years whilst in recovery from
the accident-related deficits. …
c.
He is unemployed at present.
8.2
Residual Work Capacity
m.
The accident-related injuries, specifically the brachial plexus
injury has rendered him an unfair, unfavourable and significantly
compromised candidate for employment at a very young age and resulted
in him remaining unemployed and virtually unemployable.
[21]
Mr Maritz
(Industrial Psychologist)
[7]
,
states as follows:
13.3
Post – morbid earning capacity;
13.3.19
Best case scenario, the plaintiff will most likely remain in his
current position, and it is not expected that he will secure
any
other gainful employment, and can therefore be rendered unemployable.
13.3.20
Therefore it is understandable that Mr Prinsloo will sustain a loss
of future income because of the accident.”
DEFENDANT’S
EXPERT REPORTS
[22]
Success
Moagi (Occupational Therapist)
[8]
opined:
“
20.13
Due to right hand and right upper limb impairment, Mr Prinsloo is not
suitable for work sample requiring bilateral hand function,
inclusive
of bilateral working above shoulder, as well as bilateral or
unilateral (with right dominant hand) manual/ load handling.
Thus, he
will not be suitable for any occupation requiring use of right
dominant hand.
20.27
Therefore the writer opines that, Mr Prinsloo’s occupational
prognosis is poor as is negatively affected by his residual
functional capacity.”
[23]
Tshepo
Kalanko (Industrial Psychologist)
[9]
,
opined that:
“
[41]
… It is thus accepted that from now on, he will demand on the
empathy of prospective employers who would need to accommodate
his
physical shortfalls emanating from the injuries sustained in the
accident under discussion. It can thus be construed that his
physical
agility has been impacted on, thus, from a physical perspective, the
claimant will not be able to perform in is pre-accident
physical
capacity.
[43]
…Such occupation (sic) are mainly in sheltered
employment meaning his employment in competent open labour market
is
comprised.
[48]
…It is anticipated that he will likely remain
unemployed for the remainder of his life.”
[24]
All the experts, including the experts of the Defendant concluded
that
the Plaintiff is unemployable based on the pain his experience.
Even though Ms Gouws proposed that the pain could easily be managed
if the Plaintiff undergoes the suggested treatment by Dr Raath. The
Court has to take into consideration that the Plaintiff cannot
be
compelled to undergo treatment that he is not comfortable with. Dr
Raath indicated that even if the Plaintiff undergoes this
treatment,
it would not totally remove the pain, but it will only make the pain
bearable.
JOINT
MINUTES
[25]
Ms Gouws submitted that she does not dispute the joint minutes, but
that
there be new joint minutes based on the oral evidence of Mr
Maritz.
[26]
The joint
minutes of the occupational therapists
[10]
,
agreed that “
the
loss of upper limb function, chronic pain
experience and sexual dysfunction and loss of his role as a young
worker has drastically affected his psychological sate. He has been
rendered profoundly compromised due to the resulting disability
and
permanent impairment to his level of function.”
[27]
The Occupational Therapist at paragraph 7.2.16 goes further as
follows:
“
The
client has a poor prognosis as noted by Drs (sic) Oelofse
(orthopaedic surgeon) and is at risk of further deterioration of the
right wrist and right knee and surgery may likely be necessary…
Due to the client’s inability to use the right upper
limbs and
the probability that his impairment will remain permanent, even with
intervention, (my emphasis), his future work prospects
are severely
compromised and he has been rendered virtually unemployable.”
[28]
The joint
minutes of the Industrial Psychologists
[11]
,
the following is noted at 3.4. 2:
“
We
agreed that the plaintiff will experience difficulties securing
employment in the open labour market due to the challenges, pains
and
discomfort resulting from the accident related.
It is further noted that due to the injuries and the sequalae
thereof, he may not be able to compete on par with his healthier
uninjured counter parts for employment in the open labour market.
As
such, he will likely suffer from prolonged periods of unemployment.
It is also anticipated that he may remain unemployed for
the
remainder of his life.”
[29]
Ms Gouws, submitted that she does not dispute the joint minutes,
however
the court ought to consider these joint minutes. However,
before the trial commenced, Ms Gouws accepted the joint minutes which
are inclusive of the Defendant’s occupational therapists and
industrial psychologist.
[30]
The issue
of the joint minutes as stated in
Bee
v Road Accident Fund
[12]
, as follows:
“
.
… the joint minutes will correctly be understood as limiting
the issue on which evidence is needed. If a litigant for any
reason
does not wish to be bound by the limitation, fair warning must be
given. In the absence of repudiation (i.e. fair warning),
the other
litigant is entitled to run the case on the basis that the matters
agreed between the experts are not an issue.”
[31]
Pertaining application for a postponement by the Defendant’s
legal
representative, it was confirmed on record that there was no
challenge against the joint minutes. In
Bee
supra
,
the Court is clear that there must be fair warning if the litigant is
repudiating the joint minutes. In this instance Ms
Gouws
accepted the joint minutes, but explained that she is not
repudiating, but only questioned the evidenced of Dr Maritz on
the
possibility of gainful employment. Therefore, aligning myself with
what the court said in
BEE
supra
, the parties
are bound by the joint minutes as agreed between the experts. The
Defendant is not allowed to go beyond the agreed
joint minutes. (See
also
HAL obo MML v MEC for Health Free State
2022 (3) SA 571
(SCA)
) There is therefore no reason for this Court to depart from
the joint minutes of the experts as agreed between them.
[32]
The
principles which pertains to the weight and/or value to be placed on
the joint minutes of the expert witnesses or agreement
entered into
by the parties are noted in
Thomas
v BD Sarens (Pty) Ltd
[13]
, as follows:
“
Where
the experts called by opposing litigants meet and reach agreements
about facts or about opinions, those agreements bind both
litigants
to the extent of such agreements. No litigant may repudiate an
agreement to which its expert is a party, unless it does
so clearly,
and at the very latest, at the outset of the trial. It is
self-evident that to do so at a late stage is undesirable
because it
may provoke delay, but that is a practical aspect not touching on any
principle. It is conceivable that very exceptional
circumstances
might exist that allow a litigant to repudiate an opinion later that
this moment, such as fraudulent collision, or
misconduct by the
expert…”
[33]
Joint
minutes of industrial psychologists
[14]
,
is noted as follows:
“
2.3.1
We agree that Mr Prinsloo is reportedly secured his first employment
tenure in 2016 as an Apprentice (Mechanic and Panel Beater)
at
Peter’s Auto. Thereafter, in February 2018, Mr Prinsloo secured
a better opportunity as an Apprentice (Mechanic and Panel
Beater) at
ACD, in which capacity he was employed at the time of the accident.
2.3.2
We note that Mr Prinsloo was involved in an accident on 20
th
April 2018, while he was employed as an Apprentice (Mechanic and
Panel Beater) at ACD.
2.3.3
We note that Mr Prinsloo was earning a Basic Salary of
R8 000.00 per month, amounting to R96 000-00 per annum
(according to the ACD Termination Contract).
2.4.3
TK notes that, according to Koch (2022), the Upper Quartile
for Artisans is R404 000-00 per annum. Additionally,
according
to the PayScale, the average Late-Career Automotive Service
Technician\Mechanic Salary in South Africa is R417 000.00
per
annum. Therefore, to assist the court, TK proposes that the average
amount of the different Ultimate Levels noted by TK and
BM (which is
R446, 227.00) be used. These earnings fall between the Lower
Quartile and Median Range of Paterson Level C1 (Total
Annual
Packages).
2.4.4
We agree that the average between the two should be
used.”
[34]
The Court takes cognisance of the fact that the reports of the
industrial
psychologists, including their joint minutes are important
to the actuarial calculations as these calculations are based on the
accepted scenario of the employment income, employment prospects,
education training and experience. In this regard the industrial
psychologists have agreed on the pre-accident income figures as well
as the exact income figures, but for the accident. Therefore,
the
actuarial report was accepted based on the scenario put forward by
the industrial psychologists.
[35]
The
actuarial report by GW Jacobson Consulting
[15]
,
the following is confirmed:
“
1.
The reports the industrial psychologist, Mr. Maritz and Mr
Kalanko as well as their joint minute dated 9 September 2022
have
been taken into consideration;
2.
The calculations of Mr. Prinsloo’s loss of income
were calculated as at 1 October 2022;
3.
In respect of past loss earnings a 5% contingency
deduction has been applied in respect of the value of income,
but for
the incident as well as the value of income having regard to the
accident.
4.
In respect of the future loss of earning capacity, it is
indicated that a 20% contingency figure was applied in
respect of
value of income, but for the accident and that nothing has been
applied in the value of income having regard to the
accident since
the industrial psychologists reject no future income in the injured
scenario.
5.
The Plaintiff’s past loss of income was calculated
at R629 242-00. A 5% contingency deduction of R31 462-00
was deducted leaving a balance of R597 781-00.
6.
A post injury income of R74 095-00 is also
projected to which a 5% contingency deduction of R3 705-00
was
made. The nett past loss of earnings has been calculated at
R527 391-00.”
[36]
The actuarial report of GW Jacobson Actuaries concluded that:
“
5.1
Calculation of Loss
Mr
Prinsloo’s loss is the difference between the value of his
income, but for the accident and the value of his income having
regard to the accident: In calculating his loss, his expectation of
life is taken into account.
5.2
Hazards of Life
A
deduction should be made for unforeseen contingencies such as
sickness, unemployment, errors in the estimation of further earnings
and life expectancy, earlier retirement and general hazards of life.”
[37]
Adv. Cilliers submitted that the contingency that was applied by the
actuarial of 20% deduction is actually in favour of the Defendant.
Counsel submitted that the Court should apply the usual 5% and
15%
contingency and further opposed the request by Ms Gouws for a
recalculation and submitting that this would be unfair as the
actuarial report was not disputed by the Defendant.
[38]
Ms Gouws submitted that the Plaintiff’s Industrial Psychologist
conceded that there was a possible post-morbid income of an amount of
R 2000-00 and that was left out in the calculation as it
was not
deemed to be “gainful”. Counsel further submitted a
pre-morbid contingency deduction of 20% for past loss of
income and
55% in respect of future loss of income.
[39]
In the
well-known and often quoted judgment of Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
[16]
,
the following was stated:
“
Where
the method of actuarial computation is adopted…, it does not
mean that the trial Judge is ‘tied down by inexorable
actuarial
calculations.’ He has ‘a large discretion to award what
he considers right’.”
(See Holmes JA in Legal
Insurance Company Ltd v Boles
1963 (1) SA 608
(A) at 614F)
[40]
One of the
elements on exercising that discretion is by giving a discount for
contingencies or the changes of circumstance in life.
These include,
but are not limited to expectations of life, extended periods of
unemployment incapacity due to illness
and general economic
conditions. Thus the amount of any discount may vary depending upon
the circumstance of the case and upon
the trial Judge’s
impression of the case.
[17]
[41]
In
Du
Toit obo Dikeni v Road Accident Fund
[18]
,
Daffue, J considered at [45] and [46] the view of Pickering J
in
Bonesse
v Road Accident Fund 2014 JDR 0303 (ECP)
and
as follows:
“…
It has become
customary for the court to apply a so-called sliding scale to
contingencies, i.e. 25% for a child, 20% for youth and
10% in the
middle age. It would appear that although contingency factors which
have been applied in cases involving youths and/or
children range
from 15% to 40%, the courts have generally been inclined to apply a
contingency figure of 20% in respect of youthful
plaintiffs in their
teen years.”
[42]
It is trite that contingencies, whether negative or positive are an
important control mechanism
to adjust the loss suffered by the
Plaintiff in order to achieve equity and fairness to the parties.
There is no hard and fast
rule regarding contingencies. Bearing in
mind and taking into consideration what the Court said in
Pitt v
Economic Insurance Co Ltd 1957 (3) SA (N),
following is noted:
“
The
court must take care to see that its award is fair to both sides. It
must give just compensation to the Plaintiff, but must
not pour out
largesse from the horn of plenty at the Defendant’s expense.”
CONCLUSION
[43]
The picture
painted from the Plaintiff’s experts report, undoubtedly
suggests that he is unlikely to be employed in the future
due to the
brachial plexus injury and the sequalae thereof. To minimise the pain
the Plaintiff is experiencing, Dr Raath opined
that spinal cord
stimulator if inserted, would minimise the pain, however the
Plaintiff does not agree with undergoing this treatment.
Counsel
submitted that the Plaintiff does not want to undergo treatment. Dr
Raath in his report
[19]
,
stated as follow:
“
I
will not be so pretentious to say that we will make the patient pain
free, but we will definitely make his pain liveable and will
most
probably be able to get him off the pain medication.”
[44]
The Court
accepts that the Plaintiff does not want to take the suggested
treatment, but the question is, if there is a medical method
available and tested, would a person suffering from such severe pain
not want to take the treatment to make his/her life liveable?
Dr
Raath’s report indicated that the procedure can “
improve
and should be improved to get the Plaintiff off and keep him off the
pain medication as long as possible
.”
[20]
[45]
The Plaintiff elected not to testify during the proceedings. Adv.
Cilliers
submitted that is was not necessary for the Plaintiff to
testify as the Defendant had accepted all the expert reports of the
Plaintiff.
Ms Gouws submitted that the Court is to draw a negative
inference from the Plaintiff’s failure to testify. I am
inclined
to agree with Ms Gouws. A Plaintiff who testifies gives the
Court an opportunity to make an informed observation. The Court would
have been in a position to have clarity and certainty as would be
evidenced and the Plaintiff would have been put through
cross-examination
which would have an effect on the applicable
contingency deductions to be applied.
[46]
Taking into consideration the seriousness of the injuries and that
the
Plaintiff is incapable of employment as per the occupational
therapists’ reports, improvement in the Plaintiff’s
condition
could be achieved through further counselling and
management of the brachial plexus injury which causes the chronic
pain.
[47]
According to Corbett, in The Quantum of Damages
in Bodily and Fatal Injury case Vol 1, general principle at 51 to 52,
the following
factors for contingency are to be applied in any given
case:
1.
The possibility of errors in the estimation of the injured party’s
life expectancy.
2.
The likelihood of illness and unemployment which would have
occurred in any event or which may in fact occur.
3.
Inflation or deflation in the value of money;
4.
Tax alterations on the costs of living allowance and accidents;
5.
Other contingencies which would have affected the Plaintiff’s
own capacity in any event.
[48]
There is no
doubt that the country’s unemployment rate is extremely high
and the Plaintiff will have to compete with his peers
in the same
labour market. The occupational therapists agreed in the joint
minutes that assessment findings indicating that the
Plaintiff is
suited to sedentary aspects of light load handling on an occasional
basis, even though there is loss of upper limb
functionality with the
chronic pain that has affected his psychological state.
[21]
[49]
Taking into consideration the various experts reports, in my view,
there
is a possibility that the Plaintiff may post-morbid after
receiving counselling be recuperated to such an extent that he may do
some sedentary work. This is further noted as follows by the
occupational therapists:
“
We
agree the client will be limited to sedentary work demands provided
that the position does not require bilateral hand function,
weight
handling overhead work and manual dexterity tasks.”
[22]
[50]
I therefore conclude that the contingencies applicable should be fair
and just for both parties. In
view of what the Court said in
Pitt
v
Economic
supra
, 5% ought to be applicable
contingency for past loss of income. In respect of loss of future
earning capacity, a fair percentage
to both parties would be 25%
contingencies. The 55% contingency proposed by the Defendant, in my
view is simply too extreme.
[50]
The Court has taken into consideration there being a possibility that
the Plaintiff’s chronic pain and emotional behavioural
challenges can be minimised with the necessary treatment and
counselling.
Thus the calculation would be as follows:
a)
Past loss of earnings at contingency deduction of 5% of R629 243.00
(R629 243.00 - R597 780
= R31 463.00)
b)
Future loss of earnings at a contingency deduction of 25% of
R7 665 384.00 = (R7 665 384.00
– R1 916 346.00
= R5 749 038.00);
c)
Total = R597 780.00 + R5 749 038.00 = R6 346 818.00
[51]
Accordingly, it is ordered as follows:
1.
The Defendant is ordered to pay an apportionment of 90% in favour of
the Plaintiff.
2.
The Defendant is ordered to pay the Plaintiff an amount of
R597 780.00 in respect of his claim for past
loss of earnings,
within 180 days from date hereof.
3.
The Defendant is ordered to pay the Plaintiff an amount of
R5 749 038.00 in respect of the Plaintiff’s
future
loss of income.
4.
The Defendant is to pay the Plaintiff’s costs up to and
including 15 February 2023, including Counsel’s
fees as taxed
or agreed.
________________________
CHESIWE, J
On
behalf of the Applicant: Adv. HJ Cilliers
Instructed
by: A
Wolmarans Inc.
BLOEMFONTEIN
On
behalf of the Respondent: Ms J Gouws
Instructed
by: The
State Attorney C/o Road Accident Fund
BLOEMFONTEIN
[1]
(See return of service on the defendant, page 3 of Bundle 1 -
Pleadings)
[2]
(Bundle 3, pages 566 – 572)
[3]
(Bundle
3, pages 27 – 90 of the Plaintiff’s Notice in terms of
Rule 36(9)(b))
[4]
(Bundle 3, pages 164 of the Plaintiff’s Notice in terms of
Rule 36(9)(b))
[5]
(Bundle 3, pages 227 of the Plaintiff’s Notice in terms of
Rule 36(9)(b))
[6]
(Bundle 3, pages 414 – 454 of the Plaintiff’s Notice in
terms of Rule 36(9)(b))
[7]
(Bundle
3, page 455 – 475 of the Plaintiff’s Notice in terms of
Rule 36(9)(b))
[8]
(Bundle 3, page 484 – 511 of the Plaintiff’s Notice in
terms of Rule 36(9)(b))
[9]
(Bundle 3, page 512 – 541 of the Plaintiff’s Notice in
terms of Rule 36(9)(b))
[10]
(Bundle 3, page 551 of the Joint Minutes (Occupational Therapists))
[11]
(Bundle 3, page 545, bundle 3 (Industrial Psychologists’ Joint
Minutes between Mr. BPG Maritz (BM) and Mr T Kalanko (TK)
in the
matter of Mr P Prinsloo 09 September 2022)
[12]
2018 (4) SA 366
(SCA) at para [66]
[13]
(2007/6636) [2012] ZAGPJHC 161 (12 September 2012 at para [11])
[14]
(Bundle 3, page 545, bundle 3 (Industrial Psychologists’ Joint
Minutes between Mr. BPG Maritz (BM) and Mr T Kalanko (TK)
in the
matter of Mr P Prinsloo 09 September 2022)
[15]
Page 566 to 572 dated 15 September 2022 of the Plaintiff’s
Notice in terms of Rule 36(9)(b)
[16]
1984 (1) SA 98
AD
[17]
(See Van der Plaats v South African Mutual Fire and General
Insurance Co Ltd 1980 (3) SA 105 (A))
[18]
2016 (1) SA 367 (FB),
[19]
(Exhibit
K, page 226 of Bundle C)
[20]
(Exhibit K, page 227 of Bundle C)
[21]
Exhibit B para 7.2.10 page 560 of Bundle C.
[22] Exhibit B para
7.2.18, page 561 of Bundle C.