About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 262
|

|

Kirkhoff v Road Accident Fund (5994/2015) [2023] ZAFSHC 262 (4 July 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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 5994/2015
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
In
the matter between:
CRAIG
EDDIE KIRKHOFF
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
CORAM
:
GUSHA,
AJ
HEARD
ON:
23 MAY 2023
DELIVERED
ON
:    This judgment was
delivered electronically by circulation to the parties’
representatives by way of email
and by release to SAFLII. The date
and time for delivery is deemed to be at 14h00 on 04 JULY 2023.
JUDGMENT
INTRODUCTION
[1]
On the 21
st
June 2013 the plaintiff, then 22 years old,
was involved in a road traffic accident. The collision occurred in
Bloemfontein Free
State Province, between a motor vehicle driven by
the insured driver (Mr Matoetoe Molelekoa) and a motorcycle ridden by
the plaintiff.
As a result of the accident he sustained a right
shoulder injury, chest injury and abrasions on his right knee. He was
taken to
theatre on the day of the accident for a closed reduction of
his right shoulder and the application of an arm sling for his right

arm. He remained overnight in hospital for observation and was
discharged the following day.
[2]
At the time of the accident he was employed and subsequent to his
discharge from hospital, he
recuperated at home until the
02
nd
July
2013.
He
purportedly received no remuneration for the period whilst
recuperating at home.
[3]
As a result of the injuries sustained, he instituted action against
the defendant for damages
he suffered. His claim was for the amount
of R2 552 820.00, made up as follows;
3.1
Future Medical
expenses
R
494 600.00
3.2
Past and Future
R
1 458 220.00
3.3
General Damages
R
600 000.00
TOTAL
R
2 552 820.00
[4]
At the hearing, the parties submitted that they reached a settlement
in respect of general damages
in the amount of R350 000.00. In
respect of future medical expenses the parties agreed that the
defendant will furnish the plaintiff
with a 100% undertaking in terms
of section 17 (4) (a) of the Road Accident Fund Act, Act 56 of 1996
(the Act), for the costs of
the future accommodation of the plaintiff
in a hospital or nursing home, or treatment of, or rendering of a
service, or supplying
of goods to him arising out of the injuries
sustained by him in the collision on 21 June 2013.
[5]
Consequently, I am only called upon to adjudicate the remaining
dispute; the damages suffered
by the plaintiff in respect of his past
and future loss of earnings as well as the contingencies to be
applied thereto.
BACKGROUND
[6]
I now turn to briefly deal with the background of this matter. The
plaintiff progressed to grade
12 in school and was at the time of the
accident employed as a sales consultant at Brano Industries earning a
monthly salary of
R4 500.00. His work entailed mainly light and
sedentary duties, the latter mainly being administrative work and
assisting customers
in the store.
[7]
Due to the injuries sustained, he was off work from the 22
nd
June 2013 until his return on the 02
nd
July 2013. After
returning to work, he continued to perform his erstwhile duties.
[8]
In 2015 he secured employment at Doors Galore as a sales consultant.
Once more performing light
and sedentary work mainly tending to
administrative work and assisting customers in store.
He
continued performing light and sedentary work at different employers
until he joined Nova Refrigeration as a sales consultant.
In
July 2020
he
however lost his employment
when
Nova Refrigeration
closed
down due to the effects of the COVID-19 virus and has been unemployed
since.
Expert Reports
[9]
By agreement between the parties the following expert reports were
presented by way of affidavits
in terms of section 38 (2) of the
Uniform Rules of Court
[1]
;
9.1.    Dr
JJ Schutte - General Practitioner
9.2.    Dr
LF Oelofse – Orthopaedic Surgeon
9.3.
Drs van Dyk & Partners – radiologists
9.4.
Mrs M Grobler of Rita van Biljon Occupational Therapists
9.5.
Mrs L van Zyl of Rita van Biljon Occupational Therapists
9.6.    Dr
EJ Jacobs – Industrial Psychologist
9.7.
Munro Forensic Actuaries.
9.8.
Munro forensic actuaries
[10]    I
shall now deal with the most germane aspects of some of the aforesaid
reports;
Dr JJ Schutte -
General Practitioner
[11]
Dr Schutte conducted the serious injury assessment report
[2]
on the plaintiff. In his report he noted that the plaintiff was,
during his hospitalisation, treated for chest injury / rib fractures,

right knee abrasions and a dislocated right shoulder. At the time of
the assessment the plaintiff presented with, amongst others,
a
painful right shoulder, pain when sleeping on his right side and
difficulty in carrying or picking up heavy objects. Dr Schutte

concluded that according to the narrative test
[3]
the plaintiff has serious long-term impairment which could cause loss
of bodily function.
Dr LF Oelofse –
Orthopaedic Surgeon
[12]    Dr
Oelofse examined the plaintiff on the 27
th
March 2018.
During the examination the plaintiff reported sustaining a right
shoulder injury, chest injury and right knee injury
during the
accident. He however reported no current symptoms and or complaints
of the chest or right knee. With regards to the
right shoulder
injury, the plaintiff reported current symptoms of “nagging,
consistent” pain which is exacerbated by
inclement weather,
prolonged periods of use and or working above shoulder weight. He
further reported difficulty driving as the
activity reportedly
aggravates the pain in his right shoulder.
[13]
Upon examination Dr Oelofse noted amongst others, severe atrophy of
the anterior and lateral shoulder muscles;
palpable and painful
muscle spasms in the trapezius and peri-scapular shoulder muscles,
moderate pain with palpation of the biceps
groove and rotator cuff,
movement of the shoulder mildly restricted in comparison to the left.
He opined that there is radiological
evidence of early degenerative
changes of the Gleno-humeral joint. He further opined that even with
successful treatment, the plaintiff’s
right shoulder will have
a profound impact on all aspects of his life and that he has a
probability to have chronic pain and weakness
of his shoulder
muscles. Dr Oelofse concluded that the plaintiff will not be able to
do physical labour again and must be accommodated
in a strict light
duty working environment.
Mrs M Grobler / Mrs L
van Zyl of Rita van Biljon Occupational Therapists
[14]
Mrs Grobler examined the plaintiff on the 22
nd
January
2018. Truncated, her findings are that the plaintiff retains, despite
the injury to his right shoulder of his non-dominant
arm, physical
capacity for sedentary occupational tasks. She further opined that he
presented with the physical strength and tolerance
to meet the
demands of work falling within the category of light category, but he
is excluded to optimally engage in tasks performed
at elevated levels
involving bilateral upper limb use and to handle loads of a medium
nature asymptomatically due to the restricted
right shoulder range of
movement and aggravating pain at the joint when straining the right
shoulder joint
[15]
Notwithstanding the aforesaid, she found that, despite the injury
sustained to his non-dominant arm, according
to his occupational
description, he will still be able to perform his main occupational
tasks of sedentary work and assisting clients
in store with light
demands.
Dr EJ Jacobs –
Industrial Psychologist
[16]
The salient and truncated findings of Dr Jacobs with regards to the
sequelae
are as follows;
Past loss of income
·
Past loss of income is not applicable
as the plaintiff continued to earn a living post the accident.
Loss of earning
capacity
Uninjured career
·
Due to the serious injuries the
plaintiff sustained, early retirement at age 60 from sedentary work
is expected.
·
His uninjured career can be
summarised as follows, but for the accident and injuries sustained he
probably would have worked until
the age of 65 years, employed and
earned R54000.00 per annum and at the time of the interview in 2019
had the capacity R 139 200.00
per annum.
·
He progressed to grade 12 in school
and has no further qualifications. At the time of the accident he had
a career span of 42 years
and due to a lack of post-matric
qualifications he is regarded as an unskilled worker and would
probably have continued in a semi-skilled
capacity such as sales.
[17]    Dr
Jacobs opined that the accident resulted in a change of the
plaintiff’s capacity to earn.
Injured career
·
Early retirement at the age of 60
years.
·
Fewer opportunities and reduced
productivity due to periodic pain.
[18]    Dr
Jacobs opined that a post-morbid contingency deduction which is
slightly higher than normal should be
applied.
Munro Forensic
Actuaries
[19]    Mr
Boshoff, an actuary, was requested to estimate the capital value of
the potential loss of earnings suffered
by the plaintiff as a result
of the accident and resultant injuries sustained. In his report he
states that based on data furnished,
the plaintiff is expected to
retire 5 years early and might suffer losses not directly
quantifiable which should be addressed via
contingencies. At the time
of the calculation for loss of income, the plaintiff’s earnings
were as follows;
Basic
salary
R
11.600 per month (before tax)
ER
pension contribution
4.36%
of basic salary (tax-free)
EE
pension contribution
2.64%deduction
from basic salary (allowing for tax breaks)
[20]    In
calculating the loss of earning suffered due to the accident, the
applicable assumption employed was that
the plaintiff lost his
employment in July 2020 due to the effects of Covid 19 and other
non-accident related reasons. The conclusion
reached in the report is
that the plaintiff was thus suffered past loss of income from July
2020 as he cannot be regarded as an
equal competitor.
[21]    Mr
Boshoff applying a 10% and 15% contingency deduction on past and
future loss respectively in respect of
the uninjured earnings and a
30% contingency deduction on future earnings in respect of the
injured earnings, concluded that the
plaintiff’s capital value
of loss of earnings was R 1 458 220 calculated as follows;
Uninjured
earnings
Injured
earnings
Loss
of earnings
Past
R
264 220
Less
Contingencies
10.00%
R
237 780
R
237 780
Future
R
5 487 000
R
4 919 300
Less
Contingencies
15.00%
30.00%
R
4 663 950
R
3 443 510
R
1 220 440
TOTAL
LOSS OF EARNINGS
R
1 458 220
SUBMISSIONS BY THE
PARTIES
[22]    It
was submitted on behalf of the plaintiff that what is cardinal in
determining past loss of income is the
loss of the capacity to earn
an income rather than the monetary value lost. To this end it was
submitted that the plaintiff albeit
he was employed and earned a
living, his capacity to earn same was diminished and or lost in July
2020 and that he accordingly
suffered pecuniary loss and was entitled
to be reimbursed.
[23]    On
behalf of the defendant it was submitted that the plaintiff did not
suffer any past loss of earnings as
he was employed even after the
accident and only became unemployed as a result of an occurrence
unrelated to the accident. They
submitted that the in respect of
future loss of earnings the pre and post injury scenarios were the
same at an amount of R 5 487
000.00. They implored the court to apply
thereto contingencies of 15% and 25%respectivly.
THE
LEGAL FRAMEWORK
[24]
It needs no restating that a person is entitled to be compensated to
the extent his or her patrimony has
been diminished in consequence of
another’s negligence
RAF
v Guedes
[4]
.
[25]
It further needs no restating that such damages include loss of
future earning capacity. However the calculation
of the quantum of a
future amount, such as loss of earning capacity, is not a matter of
mathematical calculation. By its nature
such an enquiry is
speculative and a court can therefore only make an estimate of the
present value of the loss that is often a
very rough estimate. The
court necessarily exercised a wide discretion when it assesses the
quantum of damages due to the loss
of earning capacity and has a
large discretion to award what it considers right. Courts have
adopted the approach that, in order
to assist in such a
determination, an actuarial computation is a useful basis for
establishing the quantum of damages. Even then
the trial court has a
wide discretion to award what it believes is just
[5]
.
[26]
In
Southern
Insurance Association Ltd v Bailey N.O
[6]
Nicholas JA remarked as follows;
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, 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". One
of the elements in exercising that discretion is the making of a
discount for "contingencies" or the
"vicissitudes of
life". These include such matters as the possibility that the
plaintiff may in the result have less
than a "normal"
expectation of life; and that he may experience periods of
unemployment by reason of incapacity due to
illness or accident or to
labour unrest or general economic conditions. The amount of any
discount may vary, depending upon the
circumstances of the case.”
[27]
It is trite that the determination of allowances for contingencies
involves, by its very nature, a process
of subjective impression or
estimation rather than an objective calculation. The question of the
contingencies deductions to be
applied, as is the issue of the
calculation of the quantum of a future amount, such as loss of
capacity, are often difficult matters.
Speculation inevitably abound.
[28]
There are no hard and fast rules of mathematical logic in the
determination of contingency discount. One
has to make a value
judgment in determining a rate of contingent discount. The court has
a wide discretion based upon a consideration
abysm of all the
relevant facts and circumstances. Contingencies of whatever nature
generally serve as a control mechanism to adjust
the loss to the
circumstances of the individual case in order to achieve justice and
fairness to the parties
[7]
.
APPLICATION
[29]
It is established law that the plaintiff must prove the extent of his
loss and damages on a balance of probabilities.
With regard to loss
of income he must adduce evidence of his income in order to enable
the court to assess his loss of past and
future earnings.
In
MVUNDLE
V RAF
[8]
the
court held as follows;
“
It
is trite that the damages for loss of income can be granted where a
person
has in fact suffered
(my
own emphasis) or will suffer a true patrimonial loss in that his or
her employment situation has manifestly changed…
Past
Loss of Earnings
[30]
In the present case the plaintiff continued working and earning an
income post the accident. In fact, he
only lost his employment years
after the accident, in July 2020 to be precise due to an unrelated
occurrence; the effects that
Covid 19 had on the general economic
climate in the country and indeed globally. If regard is had to the
data contained in the
expert reports, he was only off work from the
22
nd
June
2013 until his return on the 02
nd
July
2013, approximately 11 days. At the time of the accident he earned an
amount of R 4 500.00 per month. No data has been furnished
with
regards to whether the plaintiff was remunerated, in full, in part
and or not at all,
[9]
for the
period he was hospitalised and whilst recuperating at home. The
actuarial report simply alludes to the period of unemployment
as from
July 2020.
In view of the
aforesaid facts and in the absence of any evidence by the plaintiff
and/or any explanation in the expert reports,
the basis of the
actuarial calculation regarding the plaintiff`s alleged past loss of
earnings, constitutes, in my view, mere speculation.
[31]
I am consequently of the view that the plaintiff did not discharge
his
onus
in respect of his claim for damages for past loss of
earnings.
Future
Loss of Earnings
[32]
In their submissions the parties were
ad idem
that the
pre
and post injury scenarios were the same. Their only point of
variance
being the percentage of contingencies to be applied. In view of the
expert reports admitted and the uncontroverted evidence
that the
plaintiff injured his non-dominant hand, I am not persuaded that the
vicissitudes of life would have been so unfavourable
on him as to
warrant the reduction of his potential loss of earnings by a drastic
reduction of 30% contingency rate. Albeit an
unfair competitor, he is
still young and I hold the view that at the relative youthful age of
35 years he can still secure employment
in a light and sedentary
environment where he will not be required to either use or put strain
on his injured non-dominant hand.
Accordingly I consider it fair and
appropriate to allow for a decremental contingencies of 25% to be
applied to the post injured
scenario.
[33]
In the result I make the following order;
33.1.   The
plaintiff’s claim for damages in respect of past loss of
earnings is dismissed.
33.2.   The
defendant shall pay to the plaintiff;
33.2.1.
R350 000.00 (Three hundred and fifty thousand rand) in respect of
general damages arising from the motor vehicle accident that occurred
on the 21
st
June 2013.
33.2.2.
R 508 700 (five hundred and eight thousand rand) in respect of future

loss of income.
33.3.   The defendant shall
furnish the plaintiff with an undertaking in terms of section 17(4)
(a) of Act 56 of 1996
for payment of 100% of the for the future
accommodation of the plaintiff in a hospital or nursing home, or
treatment of or rendering
of a service or supply of goods to him,
arising from the injuries sustained by him in the motor vehicle
collision on the 21
st
June 2013.
33.4.
The defendant shall pay the plaintiff‘s taxed or agreed party
and party costs until the date of this order
including costs of
counsel. Such costs shall include the following
the reasonable
and qualifying fees of the following experts:
33.4.1.
Dr JJ Schutte - General Practitioner
33.4.2.
Dr LF Oelofse – Orthopaedic surgeon
33.4.3.
Drs van Dyk & Partners – Radiologists
33.4.4.
Mrs M Grobler of Rita van Biljon Occupational Therapists
33.4.5.
Mrs L van Zyl of Rita van Biljon Occupational Therapists
33.4.5.
Dr EJ Jacobs – Industrial
Psychologist
33.4.6.
Munro Forensic Actuaries.
33.5.
Payment of the capital
amounts shall be made without set-off or deduction, within 180
(hundred and eighty) calendar days from the
date of granting of this
order, directly into the trust account of the plaintiff’s
attorneys of record by means of electronic
transfer, the details of
which are the following:
Honey
Attorneys - Trust Account
Bank
– Nedbank, Maitland Street, Bfn
Branch
Code - 11023400
Account
No. – 1[…]
Reference
– HL Buchner/l22884
33.6.
Payment of the taxed or agreed costs shall be made
within 180 (hundred and eighty) days of taxation, and shall likewise
be effected
into the trust account of the plaintiff’s attorney.
33.7.
Interest
a tempore-morae
shall
be calculated in accordance with the
Prescribed Rate of Interest Act
55 of 1975
, read with
section 17(3)(a)
of the
Road Accident Fund Act
56 of 1996
, one hundred and eighty (180) days from the date of this
order.
NG
GUSHA, AJ
On
behalf of the plaintiff
Adv.
Pohl SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Ms.
P Banda
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
38.
Procuring evidence for trial
(2)
The witnesses at the trial of any action shall be orally examined,
but a court may at any time, for sufficient reason, order
that all
or any of the evidence to be adduced at any trial be given on
affidavit or that the affidavit of any witness be read
at the
hearing, on such terms and conditions as to it may seem meet:
Provided that where it appears to the court that any other
party
reasonably requires the attendance of a witness for
cross-examination, and such witness can be produced, the evidence of

such witness shall not be given on affidavit.
[2]
RAF 4.
[3]
The whole person impairment evaluation indicates a 19% upper
extremity impairment.
[4]
RAF v Guedes 2006 (5) 583 SCA para 8.
[5]
Ibid at fn 4. See also AA Mutual Assurance Association Ltd v Maqula,
1978 (1) SA 805
(A) at 809B.
[6]
1984 (1) SA 98
(AD) at 116G-117A.
[7]
Hall v Road Accident Fund [2013] (2008/11330) [2013] ZAGPJHC 129 (28
May 2013) at para 52.
[8]
(63500/2009)
[2012] ZAGPPHC 57(17 April 2012) at
[9]
And if not remunerated to what extent he lost his earnings,