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Beukes v Road Accident Fund (2588/2015) [2023] ZAFSHC …

Beukes v Road Accident Fund (2588/2015) [2023] ZAFSHC 434 (27 October 2023)

62 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Damages — Road Accident Fund — Claim for general damages and medical expenses — Plaintiff injured in motor vehicle collision, resulting in permanent loss of vision — Defendant conceded liability and agreed to pay R500,000 for general damages and R35,419.23 for past medical expenses — Court ordered payment without set-off within 180 days and provided undertaking for future medical costs — Claim for past and future loss of income referred for recalculation by actuaries.

Full Judgment Text (Click to expand)

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[2023] ZAFSHC 434
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Beukes v Road Accident Fund (2588/2015) [2023] ZAFSHC 434 (27 October 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
Reportable: YES
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no
2855/2015
In
the matter between:
CHARLES
JAMES BEUKES
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
JP DAFFUE J
HEARD
ON:
25 and 26 OCTOBER 2022 and 19 JUNE 2023
DELIVERED
ON:
27 OCTOBER 2023
ORDER
1.
The defendant shall pay the amounts of R500
000.00 (five hundred
thousand rand) in respect of general damages and R35 419.23
(thirty-five thousand, four hundred and nineteen
rand and twenty
three cents) in respect of past medical and hospital expenses to the
plaintiff, which amounts shall be made without
set-off or deduction,
within 180 (one hundred and eighty) calendar days from the date of
the 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

-
110
234 00
Account
number
-
110
[…]
Reference

-
HL
Buchner/J03127
2.
The defendant shall forthwith provide the
plaintiff with an
undertaking in terms of section 17(4)(a) of Act 56 of 1996 for the
costs of future accommodation and treatment
of the plaintiff in a
hospital or nursing home, or treatment of, or rendering of a service
to him, or supplying of goods to him,
arising out of the injuries
sustained by him in the motor vehicle collision of 17 April 2013,
after such costs have been incurred
and upon production of proof
thereof.
3.
The defendant shall pay the plaintiff’s
taxed or agreed party
and party costs on the High Court scale, until date of this order,
including the costs of senior counsel
as well as the reasonable
qualifying and reservation fees and expenses (if any) of the
following experts:
3.1
Dr J.J Schutte – General Practitioner;
3.2
Dr R Dyason – Eye Surgeon;
3.3
Dr D Hoffmann – Plastic, reconstructive and cosmetic surgeon;
3.4
Ms M Coetzee – Clinical Psychologist;
3.5
Ms H Meyer – Occupational Therapist;
3.6
Ms I Auret-Besselaar – Psychologist and HR Consultant;
3.7
Munro Actuaries and
3.8
Dr G.M Rosendorff – General Practitioner and approved
medical examiner of the Maritime and Coastguard Agency of the United

Kingdom.
4.
Payment of the taxed or agreed costs shall
be made within 180 (one
hundred and eighty) days of taxation, and shall likewise be effected
into the aforesaid trust account of
the plaintiff’s attorney.
5.
In the event of no agreement on the costs
of suit, the plaintiff’s
attorney shall give 14 (fourteen) days’ notice to the defendant
of taxation of their bill
of costs.
6.
Interest shall accrue at 11.25% per annum,
being the statutory rate,
compounded, in respect of:
6.1
The capital of the claim, calculated from 14 (fourteen) days from

date of this order.
6.2
The taxed or agreed costs, calculated from 14 (fourteen) days from

date of taxation, alternatively date of settlement of such costs.
7.
The plaintiff’s claim for past and future
loss of income is
referred to Munro Forensic Actuaries to be recalculated, within 20
(twenty) days of the date of this order, in
accordance with the
actuarial report dated 15 March 2021 by amending the calculations as
follows and by applying the following
contingency deductions:
7.1
Uninjured scenario
7.1.1   By
inserting the following:
May 2049 – 75% of $
7000 per month decreasing in straight line to 50% of $ 7000 per month
at retirement age 65 years.
7.2
Injured scenario
7.2.1   By
amending July 2023 to the following:
July 2023 – R10
158,00 per month (2018 terms)
7.2.2   By
inserting the following
July 2034 –
Patterson level B5 at R360 000 per year (2023 terms)
7.3
Contingencies
7.3.1
Uninjured – past loss 15%
7.3.2
Uninjured – future loss 35%
7.3.3   Injured
– future loss 15%
8.
Leave is granted to the plaintiff to set down
the matter on notice to
the defendant on the unopposed motion court roll once the actuarial
recalculation of the plaintiff’s
claim for past and future loss
of income has been made for an appropriate order of court.
JUDGMENT
INTRODUCTION
[1]
This is one of those scenarios that judges have become
accustomed to.
The plaintiff’s firm of attorneys, a well-oiled machine, has
done its homework and obtained all relevant witnesses,
including
experts. It became embroiled in litigation with the Road Accident
Fund’s legal team that elected to come to court
without
countervailing evidence. The outcome was a foregone conclusion as is
often the case in the matters that are brought to
court on a weekly
basis in this division and across the country.
THE
PARTIES
[2]
The plaintiff is Mr Charles James Beukes who was born
on 26 May 1994,
he being 18 years old at the time of the collision wherein he
completely and irreversibly lost the vision of his
left eye. He was
28 years old at the time when he testified in respect of the
quantum
of his claim. Adv PJJ Zietsman SC appeared for him, instructed by
Honey Attorneys, Bloemfontein.
[3]
The defendant is the Road Accident Fund who was at all
relevant times
represented by Ms P Banda.
A
HISTORY OF THE LITIGATION
[4]
The following is a summary of the events that led to
the conclusion
of the case:
a.
on 17 April 2013 and about a month before
his 19
th
birthday, the plaintiff was seriously injured in a motor vehicle
collision;
b.
on 18 June 2015 he instituted action against
the Road Accident Fund;
c.
six months later the defendant filed its plea;
d.
the matter was declared trial-ready, but on
26 July 2016 the
defendant raised the white flag, indicating no further interest in a
losing battle about the merits of the claim,
agreeing to pay 100% of
the plaintiff’s proven or agreed damages, an outcome that was
not surprising at all as the plaintiff
was a passenger in one of two
motor vehicles that collided with each other and would be called upon
at a hearing on the merits
to prove 1% negligence only against one of
the two insured drivers;
e.
the parties could not agree on the plaintiff’s
damages and on 1
December 2021 they eventually signed a pre-trial minute in terms of
Rule 37A, recording that the following issues
were still in dispute:
i.
the extent of plaintiff’s
injuries and the sequelae thereof;
ii.
his claim for past medical and hospital
expenses, past and future
loss of income and general damages;
f.
the plaintiff recorded, already
at that stage, that he intended
calling seven experts who were not only identified, but short
summaries of their evidence were
recorded, although by then, the
reports of these experts had already been filed;
g.
the
defendant recorded then that it did not intend appointing expert
witnesses, but reserved the right to do so;
[1]
h.
the trial on quantum was declared trial-ready
and conducted on 25 and
26 October 2022;
i.
by the end of the second
day (the matter was set down for two
days only), Mr Zietsmann indicated that the plaintiff intended to
call a further witness as
the defendant did not want to concede that
the plaintiff had failed his medical examination and could not obtain
the required ENG1
certificate, whereupon the matter was postponed to
18 and 19 April 2023;
j.
during March 2023 I became concerned
about the further proceedings
insofar as the plaintiff had in fact filed the further expert report
by Dr G.M Rosendorff, but nothing
was forthcoming from the defendant
as Ms Banda anticipated earlier, as a result a conference was held in
my chambers whereupon
mid-trial minutes were prepared;
k.
Ms P Banda indicated at the conference
that she was still
awaiting instructions from the defendant pertaining to the
appointment of expert witnesses, whereupon the defendant
was put on
terms pertaining thereto,
ie
it had to file its rule 36(9)(a)
notices on/or before 30 March 2023 and expert report on/or before 31
May 2023;
l.
as a result, an arrangement was
made that I would allow the matter to
be heard during the recess from 19 to 21 June 2023;
m.
I again communicated with the parties per email and after
they agreed
that the plaintiff’s expert witness, Dr G.M Rosndorff could
testify by means of the MS-Teams facility, I was
informed on
Thursday, 15 June 2023, the last court day before the next hearing
date, that the defendant was prepared to accept
the report;
n.
on 19 June 2023 Mrs Beukes and Wessels testified
about the past
medical and hospital costs incurred by them on behalf of the
plaintiff as well as the cessions of their claims in
his favour;
o.
by agreement the parties filed written heads
of argument and
forfeited the right to oral argument.
AGREEMENTS
BETWEEN THE PARTIES
[5]
Prior to the leading of evidence on 25 October 2022 the
court was
informed that the parties had agreed as follows:
a.
general damages in the amount of R500 000
to be awarded to the
plaintiff;
b.
the defendant shall provide the plaintiff
with the usual undertaking
in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
;
c.
the claim for past medical and hospital expenses
to be separated and
postponed
sine die
;
d.
the court shall after hearing of the evidence
make a finding as to
the plaintiff’s probable career path and the contingencies to
be applied and then refer the matter back
to the actuary to
re-calculate the plaintiff’s claim;
e.
the reports of Dr R Dyason, the eye surgeon
and Dr D Hoffmann or the
plastic, reconstruction and cosmetic surgeon, appearing in the expert
notices bundle were admitted.
[6]
On the morning of the second day of the hearing the defendant

conceded the correctness of the two expert reports of the clinical
psychologist, Ms M Coetzee, dated 19 August 2016 and 10 December

2018.
[7]
As mentioned, just before the 19
th
June 2023 the defendant
conceded the correctness of the report of Dr G.M Rosendorff, an
approved medical examiner of the Maritime
and Coastguard Agency of
the United Kingdom, regarding his assessment of the plaintiff and the
issuing of a certificate of permanent
unfitness for a career as a
seafarer, known as an ENG3.
[8]
Although not by agreement, there is also no reason why
an order
should not be made in respect of the claim for past medical and
hospital expenses which was initially separated and postponed
sine
die
. During the further hearing of this matter on 19 June 2023
the plaintiff’s mother, Mrs Beukes and a family friend, Mr
Wessels
testified about the payment of medical and hospital expenses
of the plaintiff in the total amount of R35 419.23. These two
witnesses
made payment on behalf of the plaintiff, respectively in
the amounts of R6 152.28 and R29 266.95. Their claims were
ceded
to the plaintiff as is apparent from their evidence and the
exhibits before the court. Ms Banda did not contest the evidence
which
is therefore undisputed. Consequently, the defendant shall be
ordered to pay the further amount of R35 419.23 to the plaintiff.
[9]
Although the plaintiff’s claim for past and future
loss of
income is still to be determined, there is no reason why orders
should not be made already at this stage pertaining to
the payment
for general damages and past medical and hospital expenses, as well
as the undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund
Act.
[10
]
Bearing in mind the stage of the proceedings and the only outstanding
issue, being
the recalculation of the actuary’s calculations,
there is also no reason why an appropriate costs order should not be
made
as requested by the plaintiff.
A
SUMMARY AND EVALUATION OF THE EVIDENCE LED ON BEHALF OF THE PLAINTIFF
[11]
It is appropriate to deal with the uncontested medical expert opinion
at this
stage prior to summarising and evaluating the
viva voce
evidence led on behalf of the plaintiff. The eye surgeon, Dr R Dyason
examined the plaintiff on 2 September 2014, as well as on
11 June
2021. Although the right eye examination was normal and the plaintiff
maintained an uncorrected vision of 6/6 in the right
eye, the expert
initially made the following diagnosis:
‘
1.
Traumatic optic neuropathy of the left eye causing total loss of
vision.
2.
Enophthalmos of the left eye.’
After the second
assessment he
inter alia
made the following observation:
‘
Fundoscopy was
unchanged with optic atrophy of the left eye’
He also confirmed that
the plaintiff would not regain vision of the left eye.
[12]
The plastic, reconstructive and cosmetic surgeon, Dr D Hoffmann
examined the
plaintiff on 3 September 2014. He confirmed that,
ex
facie
the medical records, the plaintiff had sustained multiple
lacerations to his left eye and face and that a CT-scan revealed
‘traumatic
Zygoma compound fracture and medial and lateral
orbit blow out.’ The records indicated that the plaintiff had
been taken
to an operating room immediately after he had sustained
his injuries for debridement and suture of the left eyelid and
lacerations
on the left side of his face. At the time of the expert’s
examination of the plaintiff the scars on his face were still
visible,
but healed. He was of the opinion that any revision attempt
would not be of any benefit.
[13]
The clinical psychologist, Ms M Coetzee, consulted the plaintiff in
August
2016 and December 2018. She dealt extensively with the
plaintiff’s pre-morbid psychological background and trauma
experience,
the trauma of the collision and injuries sustained, as
well as long-term psychological adjustment. She was of the view that
the
plaintiff presented with typical symptoms of acute stress
disorder which later developed into Post Traumatic Stress Disorder
(PTSD).
He has never received any treatment and consequently, she
suggested several sessions of psychotherapy. She emphasised that,
given
the plaintiff’s history, he would remain susceptible to
mood and anxiety symptomatology and should be closely monitored at

times of increased stress. If the reports are read in context, it is
apparent that the plaintiff ‘has suffered significant

psychiatric dysfunction throughout several formative years of his
life.’ She pointed out that she was concerned that the

plaintiff’s prognosis was complicated by a probable genetic
pre-dispossession to depression. Finally, she mentioned that
the
plaintiff had lost his competitive edge and was more likely to shy
away from any pressure or stress.
[14]
Eventually and due to the defendant’s insistence that the
plaintiff failed
to prove that he was disqualified from receiving a
medical certificate known as an ENG1 certificate, that would allow
him to become
a seafarer, a report was obtained from Dr G.M
Rosendorff. However, as mentioned, the expert’s report was
conceded to be correct.
This expert assessed the plaintiff on 18
November 2022. He agreed with the medico-legal report of Dr R Dyason
which had been provided
to him and confirmed that the plaintiff had
monocular vision and a field of vision of less than 120
o
in the horizontal field. As a result, the expert found that the
plaintiff did not qualify to be issued with an ENG1 medical
certificate,
but instead issued a certificate of permanent unfitness,
known as an ENG3.
[15]
At the stage when the plaintiff testified, he was 28 years old,
residing at
Clarens, a small holiday destination in the Eastern Free
State. At the time of the hearing he was running Bukes, a small men’s

clothing shop as the sole proprietor. He was also involved in
rock-climbing, referred to as bouldering, as a hobby. He matriculated

in 2013,
ie
at the end of the year in which he sustained his
injury.
[16]
The plaintiff’s rule 35(3) notice was handed in as exhibit A
and his
income and expenditure statement for the year ending February
2022 as exhibit B. Ms Banda made it clear that she did not accept
the
correctness of the information contained therein, but as will appear
herein later her cross-examination did not take the matter
any
further. I shall briefly refer to the contents of the two documents
during my summary and evaluation of the plaintiff’s
evidence.
[17]
Prior to opening his own business, the plaintiff assisted his mother
in her
business, Mona Lisa, that is selling women’s garments.
The plaintiff sources his stock from
inter alia
Johannesburg,
Cape Town and even internationally.
[18]
The seeds for his adventurous character have been planted by his
father during
his early high school days. He and his brother even
flew to Cairo in Egypt in 2012 when he was supposed to do his Grade
12 school
year. They cycled from there, the intention being to cycle
all the way to South Africa. Unfortunately, upon arrival in Tanzania,

they heard the news of their father’s suicide. As a result,
they flew back to South Africa, but returned to Tanzania shortly

after the funeral in order to finish the cycling experience,
eventually arriving in South Africa.
[19]
The plaintiff is seriously involved in rock-climbing or buildering as
a hobby.
It is apparent from the expenses incurred in exhibit B and
his evidence that he often travels to other destinations in order to

fulfil this part-time sporting activity. He indicated that he wanted
to pursue the vision of the founder of Billabong who co-incidentally

also lost the vision in one eye. In doing so, he is using his hobby
to network and to promote his business.
[20]
It is apparent from the income and expenditure statement that
although the
plaintiff made a gross profit of R446 273.00, his nett
income was R121 903.00 only. As testified and after considering the
expenses,
it is apparent that much of the expenses such as in respect
of travelling, accommodation and entertainment are directly,
alternatively
indirectly related to the plaintiff’s endeavours
to do rock-climbing. It must also be taken into consideration that
this
business was started in 2019 and just before the Covid19
pandemic struck the world. Bearing in mind the plaintiff’s
business
acumen and the fact that the tourist industry which had a
definite down-swing during the Covid19 pandemic, would have picked up

its head after February 2022, there is sufficient reason to believe
that the plaintiff will increase the business’ profitability.

During evidence the plaintiff was in the process of finalising a book
on bouldering with the idea to utilise the tourist industry
in the
Eastern Free State to the advantage of his hobby which in all
probabilities will increase his business’ profitability.
[21]
The plaintiff’s brother is a qualified quantity surveyor
employed in
the Cayman Islands, while his sister is employed in his
mother’s business. Prior to opening his own business, he worked
for
his mother, earning R15 000.00 per month.
[22]
The plaintiff was involved in the collision and sustained his
injuries during
the second term of his matric year in 2013. He did
well in the first term examinations in 2013 and according to him the
break from
school in 2012 did him the world of good. During his
matric year he started dreaming of becoming a captain on a luxury
yacht. He
did some research and eventually did a number of courses
during the September school holidays in 2013 as is evident from
exhibit
A. This included courses in medical first-aid, fire
prevention and firefighting and personal safety and social
responsibility,
provided by the Academy of Maritime Medicine. In 2014
he did numerous other courses presented by the Offshore Sailing
Academy as
is evident from exhibit A.
[23]
The plaintiff passed matric in 2013 and met the ‘minimum
requirements
for admission to a diploma or higher certificate study
as gazetted for admission to higher education’.
Notwithstanding, passing
grade 12, the plaintiff had only one thing
in mind and that was to become a seafarer. The courses completed by
him ensured that
he was qualified to at least become a deckhand on a
yacht. His first assignment at sea was to assist with the delivery of
a racing
boat in Australia. They left the Durban harbour, but on
their way to Australia a gale force wind prevented them from reaching
their
destination. The mast of their boat
inter alia
broke
off. Notwithstanding this traumatic experience the plaintiff did not
lose his love for sailing. Shortly afterwards he went
to Fort
Lauderdale in North America where he was employed as a refitter
(labourer) in the ship yard, earning $120 per day. He worked
there
for five months. Hereafter the owner of the boat requested him to
become part of his crew on the boat. However, he could
not obtain the
required ENG1 medical certificate. He was held to be medically unfit
by two doctors because of the blindness in
his left eye. The owner of
the boat confirmed that he could carry on working in the ship yard,
but not on the boat. He did not
want to do that and flew back to
South Africa.
[24]
On his flight back to South Africa he met the owner of the Josie
Maria, a 69
feet sail yacht. As the yacht was privately owned and
bearing in mind its size, an ENG1 medical certificate was not
required. He
went on a trip to Sydney, Australia, from there on a
different leg to Trinidad, and ultimately from Trinidad to South
America.
On this last leg the captain of the yacht started to harass
him sexually. The plaintiff testified that, after this trip he did
not return to sea as he realised that his dream to become a captain
and to travel the world would not become a reality. The plaintiff

said this, notwithstanding the fact that he would be able to remain a
seafarer on smaller boats and particularly privately-owned
pleasure
yachts, as is apparent from the report of Dr G.M Rosendorff.
[25]
My overall impression of the plaintiff is that he is an adventurous
sole with
an entrepreneurial mindset. Notwithstanding the signs of
PTSD mentioned in the report of Ms M Coetzee referred to above, I am
satisfied
that the plaintiff is a shrewd businessman with the
necessary business acumen who is doing his best to make a success of
his life.
He mentioned that he wanted to follow a similar path than
the founder of the well-known sports brand, Billabong, a surfer who
also
lost vision in his one eye, but used his sport to grow his brand
name worldwide. As mentioned, at the time of his testimony the

plaintiff was busy writing a guide on bouldering for tourist and
particularly tourists flocking to Clarens. Clearly, he wants to
use
his passion for an adventurous sport, such as bouldering, to network
and grow his business.
[26]
I accept that the plaintiff has had a torrid time growing up as
explained to
Ms M Coetzee and that he may well be suffering from
underlying PTSD. My impression of him on the witness stand, and
particularly
bearing in mind his testimony of his endeavours
post-morbid, tells a different story. In saying this, I do not want
to be understood
as not accepting what the expert stated in her
report. However, she examined him for the last time four years before
he testified.
The plaintiff did not undergo any therapy as advised
and he did not mention that he was on medication. Yet, he started a
new business
and kept it running during the Covid-19 pandemic.
[27]
The plaintiff called Mr Johan Albert Harmse to testify about his
experiences
as a seafarer. Mr Harmse started his career in the
yachting industry in 2019 only. At the time of his testimony he was
working
on his second vessel, to wit the Big Fish, a 45-meter vessel
that is based in Australia. It is diesel-powered and not a sail
yacht.
He started off as a deckhand, but was promoted to a bosun. He
confirmed due to the Covid19 pandemic, that they were quarantined
for
four and a half months in Chilli and thereafter had to obtain special
permits to return to Australia. The witness explained
the progress
that may be made by seafarers. After a few years as bosun, one can
become a first officer, or chief officer, and thereafter
a captain,
although years of experience and several courses have to be completed
in the process. He confirmed that it was difficult
to move up the
ranks, but the captains he had met were all in their late 40’s
and would work until their late 50’s.
The starting salary of a
bosun is usually between $4000 to $4500.
[28]
The occupational therapist, Ms H Meyer, testified about her
assessments of
the plaintiff, the last being on 4 September 2019. At
that stage she was not told that the plaintiff had opened his own
business,
but merely that he was residing in Clarens and managing the
shop, Mona Lisa in this tourist town. His tasks included buying stock

and collecting it from Johannesburg or Durban every month or every
second month. He did not experience any difficulties in performing

these tasks, including travelling distances of 400 to 500 kilometres
at a time. She noticed while conducting the Thurstone test
that tasks
requiring fast moving of the eyes and copying information in this
regard were slightly affected, regarding speed and
accuracy.
Consequently, she mentioned that ‘safety precautions and
implementations with regard to his left eye loss of vision
would
always be of importance, especially in the physical adventure type of
work.’ From a physical perspective, the plaintiff
would be at
risk for injury when being part of a crew working on a yacht. The
witness was adamant that the plaintiff never told
her that he had
started his own business, an aspect to be frowned upon. Obviously,
the plaintiff could not be examined in this
regard as he testified
before the expert. Fact of the matter is that the plaintiff is still
involved in a relatively dangerous
activity such as rock-climbing,
whilst he is managing his own shop and is used to travel vast
distances by car.
[29]
The psychologist and HR Consultant, Ms I Auret-Besselaar, also
testified on
behalf of the plaintiff. She confirmed, based on the
evidence of Mr Harmse and her own investigations by serving the
internet,
what would be the probable career path of the plaintiff as
a seafarer and the income increases that he might have received in
the
process.
[30]
I have my doubts about the career path of the plaintiff with
reference to scenario
two in the pre-morbid as well as the
post-morbid career path contained in paragraphs 7.1 and 7.2 of her
report to which she also
testified. I was not impressed with this
witness’ explanation as to why it would not be possible for the
plaintiff to take
on the same career path post-morbid as pre-morbid
pertaining to scenario two and therefore to reach the Paterson C3/C4
level within
10 to 12 years. Her version that the plaintiff is not an
academic type of person, but rather being practical and hands-on,
does
not explain why she was prepared to use scenario two pre-morbid,
but not post-morbid.
[31]
The witness conceded after listening to the evidence of Mr Harmse
that, pre-morbid,
the plaintiff would have reached a ceiling in
salary of $7000 per month between the ages of 40 and 45 as a first
officer and that
he would probably retire at the age of 55, where
after he might have still been employed in the marine environment,
but at a decrease
in salary of between 25% and 50% of the top notch.
[32]
The witness confirmed that nothing prevented the plaintiff to carry
on as a
re-fitter in the ship yard where he earned $120 per day, six
days per week. If multiplied by 24, it provides a figure in excess
of
$2 800 per month. Obviously, the plaintiff decided to return to
South Africa and carry on with his career in the tourist
town of
Clarens where he had the support of his mother and grandfather. I
accept the reason for his decision being that he by then
recognised
that he would never be able to become a captain of a luxury yacht.
[33]
In
considering the
viva
voce
evidence of the experts Ms H Meyer and Ms I Auret-Besselaar as well
the report of Ms M Coetzee, I am mindful of the fact that their

opinions must be cable of being reconciled with all other evidence in
the case and be underpinned by proper reasoning based on
correct
facts.
[2]
[34]
Although she was in court when the plaintiff and Mr Harmse testified,
and became
aware that the plaintiff was the sole proprietor of a shop
that he opened during 2019, I am satisfied that Mis I Auret-Besselaar

found it difficult to accept that the plaintiff was not ‘severely
compromised in terms of his future career choice, his learning

capacity and commensurate earning potential’ as set out in
paragraph 8 of her report. She even went so far to state that
‘should
his entrepreneurial endeavours of his mother’s business prove
unsuccessful, he will need financial resources
and a period of time…
to switch to complete an alternative qualification to improve his
employability.’ She also mentioned
that in doing so he would
likely have to relocate from the limited opportunities available in
the Clarens region outside the retail
sector. Her version that he was
assisting his mother as a salesman in her clothing business, a job
that according to her was not
his choice, but merely to earn an
income, has turned out to be totally incorrect, bearing in mind the
circumstances in which the
plaintiff found himself when he testified.
CONTINGENCIES
[35]
It is well
settled that contingencies, whether negative or positive, are an
important control mechanism to adjust the loss suffered
to the
circumstances of the individual case in order to achieve equity and
fairness to the parties. The following
dictum
in
Southern
Insurances Associations Ltd v Bailey NO
[3]
remains relevant:
‘
(The)
generalisation that there must be a 'scaling down' for contingencies
seems mistaken. All 'contingencies' are not adverse:
All
'vicissitudes' are not harmful. A particular plaintiff might have had
prospects or chances of advancement and increasingly
remunerative
employment. Why count the possible buffets and ignore the rewards of
fortune?’
[36]
Although
the so-called usual contingency deduction ranges between 5% in
respect of past loss of income to as high as 50% in respect
of future
loss, depending upon the facts of the case as
inter
alia
mentioned in
Van
Der Plaats v South African Mutual Fire and General Insurance Co
Ltd
[4]
and
AA
Mutual Insurance Association Ltd v Maqula
[5]
,
the more usual contingency deductions range between 5% for past loss
and 15% for future loss. In
Road
Accident Fund v Guedes
[6]
the court confirmed that there were no fixed rules regarding general
contingencies, but confirmed the guidelines to be used,
ie
25% for a child, 20% for a youth and a 10% in middle age with half a
percent added per year until retirement.
[37]
In
Road
Accident Fund v Kerridge
[7]
,
the plaintiff was a student at the time of the collision wishing to
become a diesel mechanic, but was rendered unable to finish
his
studies due to the injuries sustained which prevented him from
pursuing the type of work he was interested in. In that case
the
contingency deduction for future loss of earnings was increased from
15% to 35%, having considered that the plaintiff had a
greater chance
of being subjected to vicissitudes of life and given his limited
employment history. Therefore, there was a greater
uncertainty in
assessing his career path.
[38]
I accept
that a provision for contingencies falls squarely within the
subjective discretion of the court as to what is reasonable
and
fair.
[8]
In order to come to a
final conclusion I shall consider the parties’ submissions. Ms
Banda relied on 30% and 35% contingencies
in respect of pre-morbid
and post-morbid future earnings respectively. Unfortunately, her
calculation of plaintiff’s future
loss is unacceptable.
[39]
Mr Zietsman submitted that the following contingency deductions
should be allowed,
relying in particular on the version of Ms I
Auret-Besselaar.
a.
5% to past loss of income in the uninjured
scenario and 20% to future
loss of income in that scenario;
b.
0% in respect of past loss of income post-morbid
as we all know what
happened to the plaintiff during the past five years and 35% to
future loss of income.
[40]
Insofar as contingencies in respect of the uninjured scenario are to
be considered,
I do not agree with Mr Zietsman. The 5% in respect of
past loss pre-morbid does not take into consideration the severe
impact of
the Covid19 pandemic. Mr Harmse has indicated the effect to
an extent, but there can be no doubt that the international lock down

had a severe effect on economic activity worldwide and relative to
this case, the marine industry. Therefore, the 5% should be
increased
to 15%, I have also noticed that the actuary did not take into
consideration that there might have been a period from
January 2020
when the Covid19 pandemic struck since when pre-morbid earnings would
be much less then assumed.
[41]
Furthermore, in the calculation of loss of earnings, post-morbid, no
earnings
are assumed during the period January 2021 to July 2023. It
is not clear what the actuary had in mind. The plaintiff worked for

his mother until he opened his own shop in 2019. I do not agree with
the assumption and/or instructions relied upon by the actuary,

applying 20% contingencies in respect of future earnings pre-morbid
and Mr Zietsman’s submission in this regard. In my view,

several adverse contingencies have not been considered:
a.
the plaintiff grew up in the Free State, far
from the sea and did not
show that any of his family or other relatives had any sea faring
experience; it is one thing to be adventurous
and belief that one my
one day became a captain faring across the oceans, but I am not
prepared to find that this was also a realistic
goal in the present
circumstances;
b.
Mr Harmse’s evidence does not assist
at all as he was a mere
three years in the industry when he testified in this matter,
although he indicated how long it would take
to become a captain or
even a first officer, but confirmed that it was a difficult road;
c.
Ms I Auret-Besselaar made her latest calculation
assumptions as
evident from her evidence on the basis that the plaintiff would at
least have become a first officer and eventually
be able to retire at
the age of 55, but continue to stay on in the marine industry but at
a much lower salary;
d.
sea faring is not the usual occupation of
South Africans, and
especially people growing-up in a high veld town such as Sasolburg;
e.
most people are prepared to enjoy adventures
and at the same time
earning an income for a few years, but it cannot be doubted that the
majority of people want to settle at
a stage, get married, raise
children and be close to their families, instead of being months away
from them;
f.
I am not convinced that the plaintiff
would on the probabilities
become a first officer, not even mentioning a captain, in the time
frames as indicated or at all. It
might be easy to become a deck-hand
or even a bosun, but there are only so many yachts and so many
positions for first officers
or captains across the world; in my view
insufficient evidence has been placed before me to find on the
probabilities that the
plaintiff’s career path would be so
smooth, pre-morbid, as indicated by either Mr Harmse or Ms I
Auret-Besselaar.
[42]
Therefore, it would be more realistic and fair to both sides if a
high contingency
of 35% is applied on pre-morbid future earnings and
the actuary is requested to do his calculations based thereon.
[43]
The actuary had initially been instructed to apply a 40% contingency
on future
earnings, post-morbid, whilst Mr Zietsman submitted that a
contingency of 35% should be applied. I am satisfied, that bearing in

mind all positive factors, some of which I list hereunder, a 15%
contingency should be applied in respect of post-morbid future

earnings. Some of those factors are:
a.
the plaintiff has always relied on his mother
in support of his
business endeavours, bearing in mind that he to an extent used her
business as well as her business premises
as a springboard to start
and grow his own business;
b.
the income and expenditure account of the
plaintiff indicates a
rather low nett income, but it must be seen in light of the recent
start-up of the business in difficult
times during the Covid19
pandemic, the initial ban on interprovincial travel preventing
tourists from other provinces and/or international
tourists to visit
the tourist town of Clarens;
c.
the plaintiff is apparently a hardworking
businessman with the
necessary business acumen with an adventurous spirit who is prepared
to go the extra mile to attract new clientele,
by
inter alia
utilising his hobby of rock-climbing to advertise his business and to
network;
d.
the probabilities of increasing his nett income
are favourable.
CONCLUSION
[44]
I have had regard to Mr Zietsman’s submissions and the draft
order prepared
by him. Save for my difference of opinion pertaining
to the contingencies to be applied, I agree with the figures
contained in
paragraphs 1.1.1, 1.2, 1.2.1 and 1.2.2 of the draft.
Having dealt with the evidence and my evaluation thereof and bearing
in mind
the wide discretion I have pertaining to the application of
contingency, Munro Actuaries are requested to recalculate the
plaintiff’s
past and future loss of income in accordance with
the order issued herein.
ORDER
1.
The defendant shall pay the amounts of R500
000.00 (five hundred
thousand rand) in respect of general damages and R35 419.23
(thirty-five thousand, four hundred and nineteen
rand and twenty
three cents) in respect of past medical and hospital expenses to the
plaintiff, which amounts shall be made without
set-off or deduction,
within 180 (one hundred and eighty) calendar days from the date of
the 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

-
110
234 00
Account
number
-
110
[…]
Reference

-
HL
Buchner/J03127
2.
The defendant shall forthwith provide the
plaintiff with an
undertaking in terms of
section 17(4)(a)
of Act 56 of 1996 for the
costs of future accommodation and treatment of the plaintiff in a
hospital or nursing home, or treatment
of, or rendering of a service
to him, or supplying of goods to him, arising out of the injuries
sustained by him in the motor vehicle
collision of 17 April 2013,
after such costs have been incurred and upon production of proof
thereof.
3.
The defendant shall pay the plaintiff’s
taxed or agreed party
and party costs on the High Court scale, until date of this order,
including the costs of senior counsel
as well as the reasonable
qualifying and reservation fees and expenses (if any) of the
following experts:
3.1.
Dr J.J Schutte – General Practitioner;
3.2.
Dr R Dyason – Eye Surgeon;
3.3.
Dr D Hoffmann – Plastic, reconstructive and cosmetic surgeon;
3.4.
Ms M Coetzee – Clinical Psychologist;
3.5.
Ms H Meyer – Occupational Therapist;
3.6.
Ms I Auret-Besselaar – Psychologist and HR Consultant;
3.7.
Munro Actuaries and
3.8.
Dr G.M Rosendorff – General Practitioner and approved
medical examiner of the Maritime and Coastguard Agency of the United

date of this order.
6.2
The taxed or agreed costs, calculated from 14 (fourteen) days from

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