IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
LOUIE ROUVIERRE ROUX
and
ROAD ACCIDENT FUND
(LINK: 4442568)
Coram:
Heard:
Delivered:
Summary:
Van Zyl, J
18 June 2024
17 December 2024
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case number: 153/2019
Plaintiff
Defendant
Claim for damages - motor vehicle accident - post-morbid loss of earnings -
applicable principles re-stated.
ORDER
1. The defendant is liable to pay 80% (Eighty Percent) of the plaintiffs
proven or agreed damages.
2. The defendant sh~II furnish the plaintiff within 180 (one hundred and
eighty days) of date of this order with an Undertaking in terms of section
17(4)(a) of the Road Accident Fund Act, 56 of 1996, to compensate the
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plaintiff for 80% of the costs of future accommodation of the plaintiff in a
hospital and/or nursing home or the treatment of or rendering of a service
to him or the supplying of goods to him arising out of the injuries
sustained by him in the motor vehicle collision which occurred on 8
August 2017, after such costs have been incurred and upon submission
of proof thereof.
3. The plaintiffs attorney of record is ordered to forthwith request the
actuary, Mr J Potgieter, to prepare an actuarial calculation on the
postulations as agreed upon between the parties, but with a 22.5%
contingency for plaintiffs post-morbid future loss of earnings, and
updated to date of this order; hence:
Pre-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
Less Contingency of
Post-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
Less Contingency of
R 4 241 842.00
5%
R59 203 218.00
15%
R3 875 893.00
0%
R59 203 518.00
22.5%
4. Leave is granted to the parties to approach Van Zyl, Jin chambers, once
the aforesaid calculation is received to obtain a further order for the
payment by the defendant to the plaintiff of 80% (Eighty Percent) of the
amount calculated as aforesaid.
5. The defendant shall pay the plaintiffs taxed or agreed party and party
costs of the action, which costs shall include, but not be limited to, the
following:
5.1 The reasonable qualifying fees of the following experts:
5.1.1 Dr Marus - Neurosurgeon;
5.1.2 Dr Oelofse - Orthopaedic Surgeon;
5.1.3 Dr Close - Orthopaedic Surgeon;
5.1.4 A Cramer - Clinical Psychologist;
5.1.5 Dr Vorster - Forensic Psychiatrist;
5.1.6 A Greeff - Occupational Therapist;
5.1.7 A Wasserman - Industrial Psychologist; and
5.1.8 J Potgieter -Actuary.
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5.2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument, to be taxed on scale 8.
6. The aforesaid costs are also to include the additional costs for obtaining
the newly calculated and updated report from Mr Potgieter, as well as
any consequential costs incurred for it to be made an order of Court.
7. The plaintiffs claims for past medical-and hospital expenses and
general damages are postponed to the pre-trial roll of 17 February 2024
for later adjudication.
JUDGMENT
Van Zyl, J
[1] The plaintiff claims damages for injuries he suffered as a result of an accident
which occurred between the motorcycle he was driving and a motor vehicle on 8
August 2017.
[2] The parties previously settled the merits in favour of the plaintiff on an 80/20
percentage basis. The defendant also tendered a statutory undertaking in terms of
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Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, in respect of the
plaintiffs claim for future hospital-and medical expenses.
[3] The plaintiffs claim for past hospital-and medical expenses is still in dispute
and the said claim will consequently be postponed to a pre-trial date for purposes
of later adjudication.
[4] The plaintiffs claim for general damages was rejected by the defendant and
subsequently referred to the Health Professions Council of South Africa ("HPCSA").
On 14 June 2024 the HPCSA found the injuries sustained by the plaintiff as not
serious in terms of the narrative test. The plaintiff requested reasons for the
mentioned decision and intends, upon receipt thereof, to pursue the remedies at his
disposal. This claim should consequently also be postponed to a pre-trial date for
purposes of later adjudication.
[5] The parties further agreed as follows:
1. The facts contained in the experts' reports are admitted and not in
dispute.
2. The plaintiff is entitled to past and future loss of earnings ..
3. The calculation of the loss of earnings are to be made on the basis of the
following amounts and contingencies:
Pre-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
Less Contingency of
Post-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
R 4 241 842.00
5%
R59 203 218.00
15%
R3 875 893.00
0%
R59 203 518.00
5
Less Contingency of Percentage in dispute
4. Therefore, the only remaining issue in dispute between the parties is the
determination of the contingency to be applied in respect of the plaintiffs
post-morbid future loss of earnings, which I have to determine based on
the expert reports and the facts contained therein. In this regard the
plaintiff contends that the just and fair contingency percentage to be
applied is 22.5%, whilst the defendant contends that 17,5% is the just
and fair contingency deduction in the circumstances of this matter.
[6] Judgment was reserved and both parties filed heads of argument on the issue
of the said contingency.
[7] For the sake of ease of reference the plaintiff also filed a separate indexed and
paginated bundle containing all the notices and reports in respect of the different
expert witnesses. I wish to extend my gratitude to the legal representatives of the
plaintiff for their trouble and effort in this regard.
[8] The plaintiff was born on 16 March 1989. At the time of the accident the
plaintiff was employed as an Approach Radar and Procedural Controller at the Air
Traffic Navigational Services, Bloemfontein International Airport. The plaintiff was
single at the time. It is evident from the addendum medico-legal report of the
Occupational Therapist, Ms A Greeff, dated 27 May 2024, that the plaintiff has since
got married and they emigrated to Nieu-Zealand in April 2023. Initially he was
employed as a Procedural Approach and Aerodrome Controller in lnvercargill,
which employment he started in June 2023. After approximately seven months an
internal position opened as a Wellington Approach Radar Controller in Christchurch.
He applied for the position and was successful and they moved to Christchurch in
March 2024 and at the time of the drafting of the addendum report, the plaintiff was
still busy with training in the new position.
[9] Since the facts contained in the experts' reports are not in dispute, I do not
deem it necessary to repeat same herein. I shall deal with the facts and
circumstances which are, in my view, applicable to the determination of the
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contingency percentage in respect of the plaintiffs post-morbid future loss of
earnings.
Applicable principles in respect of contingencies:
[1 0] It is trite that it is for the court to determine the percentage of contingencies to
be applied in a matter such as this.
[11] Contingencies discount the vicissitudes of life and it is a method used to
arrive at fair and reasonable compensation. The question of contingencies was
dealt with in Southern Insurance Association Ltd v Bailey N. 0. 1984 (1) SA 98 (A)
at 113G and 116G- 117A:
'Any enquiry into damages for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs
or oracles. 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.
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' (per HOLMES JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at
614F). 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. See Van der Plaats v South African Mutual
Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 - 5. The rate of the discount
cannot of course be assessed on any logical basis: the assessment must be largely arbitrary
and must depend upon the trial Judge's impression of the case.
It is, however, erroneous to regard the fortunes of life as being always adverse: they may be
favourable. In dealing with the question of contingencies, WINDEYER J said in the Australian
case of Bresatz v Przibilla (1962) 36 ALJR 212 (HCA) at 213:
"It is a mistake to suppose that it necessarily involves a 'scaling down'. What it involves
depends, not on arithmetic, but on considering what the future may have held for the
particular individual concerned ... (The) generalisation that there must be a 'scaling
down' for contingencies seems mistaken. All 'contingencies' are not adverse: All
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'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? Each case depends upon its own facts. In
some it may seem that the chance of good fortune might have balanced or even
outweighed the risk of bad."'
[12] In Gil/banks v Sigournay 1959 (2) SA 11 (N) the following was stated at 17 E
- F in respect of contingencies in an estimation of a plaintiffs claim for loss of
earnings:
'In any estimate of a person's loss of earning capacity allowance must be made for all
contingencies including the accidents of life and certain deductions must be made from the
estimated gross income to allow for unemployment benefits, insurance and so on. These
contingencies would include -
(i) a possibility that plaintiffs working life may have been less than sixty-five years;
(ii) a possibility of his death before he reaches the age of sixty-five years;
(iii) the likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation and deflation;
(vi) alterations in the cost-of-living allowances;
(vii) an accident whilst participating in sport such as hockey or cricket, or at any other
time which would affect his earning capacity; and
(viii) any other contingency that might affect his earning capacity.'
[13] In Road Accident Fund v Reynolds (A5023/04) [2005) ZAGPHC 19 (18
February 2005) the full court held as follows:
'Contingencies may consist of a wide variety of factors. They include matters such as the
possibility of error in the estimation of a person's life expectancy, the likelihood of illness,
accident or employment which in any event could have occurred and therefore affects a
person's earning capacity ... '
[14] In Van der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980 (3) SA 105 (A) at 115 C - D the court held that it has a discretion in allowing
contingencies. The said discretion must be based upon the circumstances of the
particular case.
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[15] In O/amini v Road Accident Fund (59188/13) [2015] ZAGPPHC 646 (3
September 2015) at paras [30] - [31] the court dealt with and applied some
guidelines referred to by Koch in The Quantum Year Book:
'[30) Koch refers to the following as some of the guidelines as regards contingencies:
"Normal contingencies" as deductions of 5% for past loss and 15% for future loss.
"Sliding scale": 1/2 % per year to retirement age, i.e. 25% for a child, 20% for a youth
and 10% in the middle age and relies on Goodall v President Insurance 1978 (1) SA
389.
"Differential contingencies" are commonly applied, that is to say one percentage applied
to earnings but for the accident, and a different percentage to earnings having regard
to the accident.
(31) When a court is called upon to exercise an arbitrary discretion that is largely based on
speculated facts it must do so with necessary circumspection. In the absence of contrary
evidence, the court can assume that a reasonable person in the position of the plaintiff would
have succeeded to minimize the adverse hazards of life rather than to accept them. Both
favourable and adverse contingencies have to be taken into account in determining an
appropriate contingency deduction. Bearing in mind that contingencies are not always
adverse, the court should in exercising its discretion Jean in favour of the plaintiff as he would
not have been placed in the position where his income would have to be the subject of
speculation if the accident had not occurred.' [My emphasis)
Relevant facts and circumstances dealt with in the plaintiff's experts reports:
[16] Dr Marus, the Neurosurgeon, stated that the plaintiff sustained the following
injuries in the accident:
'1. A concussive (diffuse) brain injury.
2. Left-sided acute subdural haemorrhage.
3. Soft tissue injuries cervical and lumber spine.
4. Soft tissue injuries lower limbs including left ankle.'
[17] Ms Bornman, who appeared on behalf of the defendant, submitted that the
defendant had pre-existing conditions/injuries not related to the accident and that
same should be considered when applying the appropriate contingency. In this
regard she referred to an acute disc hernia which was successfully treated at Arwyp
Hospital during 2015/2016. The plaintiff also injured his back during Crossfit and
then stopped doing Crossfit completely. With reference to the medico-legal reports
9
of the Orthopaedic Surgeon, Dr Close, and the Neurosurgeon, Dr Marus, Ms
Bornman submitted as follows in her heads of argument:
'• The patient now presents with neck pain radiating to the right shoulder which has pre
existing pathology.
• The patient is markedly overweight and has gained weight since the accident. This
could also be contributing to the back pain.
• The lumbus vertebra and Schmorl nodes, etc., are all evidence of co-incidental
pathology unrelated to the accident.
• Before the accident when he was at school he had similar problems in that he felt that
there was a nerve pinching.
• With respect to the right arm he had a water skiing injury when he was young. He now
has some limitations of the right arm if he tries to lift it above his head.
• When he was 15 years of age he had to have a ner:ve sutured in the right arm. He cut
this with a piece of glass.
• The lumber symptoms appear to be most prominent pre-accident spinal problem.'
[18] Dr Close recorded the following post-accident complaints by the plaintiff in his
report:
'• Ongoing middle and lower back pain which is worse with prolonged sitting, standing or
driving as well as physical activities and inclement weather.
• Left foot pain when performing physical activities such as walking and running.
• Left shoulder pain when performing hard physical activities with the pain radiating to the
neck and scapula area.
• Left knee pain at times which· is worsened by certain knee movements .
• Feelings of depression at times.
• He also notes loss of memory regarding certain pre-accident incidents as well as
difficulty finding words at times.
• Right shoulder pain with certain movement, and impingement of the nerve. This is not
accident-related. (i.e. pre-dates the accident).'
[19] Dr Close also recorded at p.12 of his report that the plaintiff indicates mainly
thoraco-lumbar back pain extending down the lumber spine to the lumbo-sacral
area. However, it is important to note that Dr Close also recorded that the plaintiff
indicated that he was not symptomatic at the time of the accident.
[20] It is evident that the injury of and the pain to the left shoulder occurred during
and post-accident. In the report of the Orthopaedic Surgeon, Dr Oelofse, he
10
indicated that the surgical treatment which the plaintiff received was "arthroscopy
on left shoulder; excision left ac-joint (2020)".
[21] In the report of Dr Marus, it was also recorded that at the time of the accident
the plaintiff did not have any back problems. He also did not have any problems in
respect of his left shoulder blade pain before the accident.
[22] In the report of Dr Marus he stated the following which regard to a CT-scan
which was done on the day of the accident on 8 August 2017:
'With respect to the brain there was a left sided subdural haematoma measuring 7mm in width
extending from the frontal to the occipital region as well as from the vertex to the middle cranial
fossa. Six millimetre of shift towards the right side.'
[23] The implication of the acute subdural haemorrhage Dr Marus recorded to be
the following:
'• Cognitive dysfunction: it would add gravity to the severity of the brain injury as noted
above, and hence increase the long term risk of permanent cognitive deficits being
present.
• Would place him at risk for the development of late post-traumatic epilepsy: the highest
risk factor would be in the first five years. If no seizure occurs in this period of time, a
small risk (plus minus 5%) would be residual in the longer term. A further consideration
of risk would be dependent on whether there were any intrinsic abnormalities of the
brain noted on the MRI brain scan.'
[24] At paragraph 2.3.6 of the report of Dr Marus he recorded the following:
'2.3.6 Apportionment: As he had pre-existence cervical and lumbar symptoms, it appears
that the accident has aggravated his pre-existing symptoms .... However based on his
history, it appears that his neck pathology would be mainly due to the accident (plus
minus 80%), whilst the pre-existed condition would probably contribute at least 50% of
his current lumbar problems ... .'
[25] Dr Marus drafted an addendum to his initial report after having received the
report by A Cramer, the Clinical Psychologist. Dr Marus subsequently opined as
follows:
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'The noted neuro-cognitive problems would probably undermine his ability to perform at his
pre-accident levels as an air traffic controller.'
[26) Ms Cramer, a Clinical Psychologist, performed a variety of tests to determine
the plaintiffs neurocognitive profile. She subsequently stated as follows at
paragraph 13.10 of her medico-legal report:
'Mr Roux's neurocognitive profile is therefore indicative of variables simple attention, limited
as well as variable complex attention and working memory, double-tracking difficulties,
slowing as well as variability of his psychomotor and mental processing speeds, a verbal
memory deficit, visual memory that falls below expectation, reduced perceptual organization
and planning, very poor practical planning and problem-solving, limited verbal reasoning, very
mild stimulus resistance difficulties and manual dexterity that falls below expectation,
bilaterally. These neurocognitive deficits can be attributed to a combination of factors,
including the moderately severe brain injury sustained by Mr Roux in the accident under
review, together with his very low mood and ongoing symptoms of accident-related anxiety.
Indications on testing of a verbal memory deficit along with mildly reduced verbal reasoning,
and Mr Roux's complaints of word-finding and comprehension difficulties, allude to the
predominantly left hemispheric involvement as was demonstrated on neuro-imaging.
Importantly, Mr Roux is still within the expected recovery phase of two years following
traumatic brain injury. While further improvement may still occur, this is unlikely to be
significant, and his deficits are considered largely permanent and irreversible.'
[27) Ms Cramer also stated that the plaintiff reports severe symptoms of depression
on psychometric assessment, and on presentation, his mood was depressed, and
his affect very restricted.
[28) Ms Cramer further opined as follows in paragraph 13.12 of her report:
'Mr Roux believes that he copes adequately at work, but is uncertain of how he will cope with
high-volume air traffic. With regards to Mr Roux's future occupational prospects, he would be
expected to have difficulty to work as a result of the following factors:
a) Fluctuations in his simple attention, he is limited as well as variable complex attention
and working memory, complex tracking difficulties; and the slowing and variability of his
psychomotor and mental processing speeds, which would have a significant impact on
his accuracy and efficiency at work. His job as an air traffic controller would require him
to remain focused and to multi-task, and these skills appear to have been compromised
by the accident and the brain injury he sustained.
12
b) Decline in his memory following the accident suggest that he would struggle to learn
and retain new information, and acquire new skills.
c) Poor planning and problem-solving abilities suggest that he may have difficulty
responding to novel situations, and finding solutions to problems.
d) His very low mood, lack of confidence and ongoing symptoms of anxiety could hamper
his levels of drive and motivation, and ultimately his productivity.'
[29] In an updated report by Ms Greeff, an Occupational Therapist, she concluded
that the plaintiff, seven years' post-accident, continues to struggle coping with the
demands of his everyday life and this is eroding his autonomy. She further opined
that ongoing sequelae which have developed post-accident should be seen as
confirmation of the accident being a watershed event in his life, also as his
difficulties is expected to be of a permanent nature and there is a risk that his level
of functioning will continue to decline. With regard to his work ability, she concluded
as follows at paragraph 6 of her medico-legal report:
'1. Sequelae from his brain injury will prevent him from becoming a commercial pilot.
2. The writer concluded in May 2020 ... that although Mr Roux retains the capacity to cope
with some of the tasks and expectations of employment as a Pilot and Approach Radar
Controller, extent of his difficulties constitute a compromise match.
2.1
3. It thus remain relevant to conclude that sequelae from his accident injuries will continue
to render him significantly vulnerable and compromised in his ability to compete in the
labour market, especially performing employment in the aviation scope.'
[30] Ms A Wassermann, an Industrial Psychologist, indicated in her updated report
that the plaintiff reported that his back injury worsened since the accident and that
he remains in chronic pain. He has been experiencing pain daily. He has not been
able to exercise as before and has gained a lot of weight as a result thereof.
[31] With regard to his cognitive and emotional challenges, the plaintiff indicated to
Ms Wassermann that his job requires high levels of focus and concentration, which
he struggles to maintain. He reportedly experiences frequent memory lapses,
resulting in mistakes and forgotten tasks. Recurring thoughts about the accident,
stress, anxiety and mood swings further complicate his work life. There has also
13
been an incident of aggressive behaviour towards a colleague. The plaintiff further
expressed to Ms Wassermann that he must work significantly harder than his
colleagues to achieve the same results which is a substantial mental challenge. He
reportedly struggles with concentration, short-term memory and focus, which are
critical for his high-stress job. The plaintiff's biggest concern is whether he will be
able to perform his duties effectively, as he feels the accident's impact is a daily
battle. The plaintiff worries that if he does not succeed in his current position, he
has no other career path to fall back on and it has been a big mental challenge for
him not to give up. Although he has not received any warnings about his
performance in his prior employment, he feels there is a clear difference in his ability
to do his job.
[32] With regard to the future employment functioning of the plaintiff, Ms
Wassermann opined as follows in paragraph 6.2.4 of her report:
'f) From the expert reports, the prognosis for improvement of Mr Roux's functioning seems
limited and it is foreseen that he will continue experiencing similar limitations in future.
g) The author foresees that he will continue experiencing difficulties with his work tasks.
His concentration and cognitive difficulties are specifically of concern as his work
requires a great deal of focus, problem-solving and cognitively demanding tasks.
h) Considering the aforementioned, together with his experience of pain and psychological
difficulties ... it seems less likely that he will be successful in securing employment at a
prestige airport such as Dubai (as he aspired to).
i) The author opines that he will remain at risk of poor performance outcomes throughout
his career (including reduced work speed, forgetting instructions, mistakes, having
abrupt interactions with co-workers; work disengagement, and lack of motivation. This
could all affect his earnings progression .... '
[33] Although it remains the task of the court to determine the relevant contingency,
Ms Wassermann listed some contingency factors .in her report. She opined that in
the event that he makes a gross mistake he could lose his employment and even
his licences to work. Should he lose his current employment, he will likely
experience difficulty securing alternative employment (as he may perform poorly in
the recruitment process), which may result in a period of unemployment or even
under-employment. In a case where he develops epilepsy, he may have to
14
discontinue his work as an Air Traffic Controller, considering the safety risks it could
pose to others in times when he has a seizure.
[34] In her heads of argument Ms Bornman submitted that it is also of importance
that the HPCSA found that the injuries sustained by the plaintiff is classified as not
being serious in terms of the narrative test. Although it is a factor which I take into
consideration, the fact remains that it is my responsibility and discretion to decide
upon the facts and circumstances of the matter what contingency is fair and
reasonable in the circumstances. In my view, I am not to be influenced in this regard
by the decision of the HPCSA.
Conclusion:
[35] Although the parties have agreed upon the respective amounts of damages
as referred to earlier in this judgment, the total loss will be reduced by the CAP.
[36] Having considered all the relevant facts and circumstances of the case, I deem
it fair and reasonable that a contingency deduction in respect of the plaintiff's post
morbid future loss of earnings of 22.5% be applied, as contended by Mr Thompson,
who appeared on behalf of the plaintiff.
[37] The date of calculation by Mr Potgieter, the Actuary, was 18 June 2024. Mr
Potgieter will consequently be requested to prepare an updated actuarial calculation
on the present postulations, but with a 22.5% contingency for post-morbid future
loss of earnings and updated to date of this order.
Costs:
[38] There is no reason why costs should not follow the outcome of the case.
[39] With reference to Uniform rule 67 A(3), read with Uniform rule 69(7), I agree
with Ghubhelabm (Pty) Ltd v R.A.W Truck Trading CC (B3217/2023) [2024]
ZAGPPHC 460 (26 April 2024), where the court found as follows at para 27 of the
judgment:
15
'Costs orders, including the assessment of the appropriate Rule 69 scale, remain a
matter for the exercise of judicial discretion.'
[40] In view of the totality of the factors to be considered in terms of Uniform Rule
67(A)(3)(b), as well as the facts and circumstances of the present matter, I consider
scale B to be the appropriate scale for counsel's fees.
Order:
[41] The following order is made:
1. The defendant is liable to pay 80% (Eighty Percent) of the plaintiffs
proven or agreed damages.
2. The defendant shall furnish the plaintiff within 180 (one hundred and
eighty days) of date of this order with an Undertaking in terms of section
17(4)(a) of the Road Accident Fund Act, 56 of 1996, to compensate the
plaintiff for 80% of the costs of future accommodation of the plaintiff in a
hospital and/or nursing home or the treatment of or rendering of a service
to him or the supplying of goods to him arising out of the injuries
sustained by him in the motor vehicle collision which occurred on 8
August 2017, after such costs have been incurred and upon submission
of proof thereof.
3. The plaintiffs attorney of record is ordered to forthwith request the
actuary, Mr J Potgieter, to prepare an actuarial calculation on the
postulations as agreed upon between the parties, but with a 22.5%
contingency for plaintiffs post-mc;:>rbid future loss of earnings, and
updated to date of this order; hence:
Pre-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
R 4 241 842.00
5%
R59 203 218.00
Less Contingency of
Post-morbid Earnings:
Past Loss of Earnings
Less Contingency of
Future Loss of Earnings
Less Contingency of
15%
R3 875 893.00
0%
R59 203 518.00
22.5%
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4. Leave is granted to the parties to approach Van Zyl, J in chambers, once
the aforesaid calculation is received to obtain a further order for the
payment by the defendant to the plaintiff of 80% (Eighty Percent) of the
amount calculated as aforesaid.
5. The defendant shall pay the plaintiff's taxed or agreed party and party
costs of the action, which costs shall include, but not be limited to, the
following:
5.1 The reasonable qualifying fees of the following experts:
5.1.1 Dr Marus - Neurosurgeon;
5.1.2 Dr Oelofse - Orthopaedic Surgeon;
5.1.3 Dr Close - Orthopaedic Surgeon;
5.1.4 A Cramer - Clinical Psychologist;
5.1.5 Dr Vorster - Forensic Psychiatrist;
5.1.6 A Greeff - Occupational Therapist;
5.1.7 A Wasserman - Industrial Psychologist; and
5.1.8 J Potgieter - Actuary.
5.2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument, to be taxed on scale B.
6. The aforesaid costs are also to include the additional costs for obtaining
the newly calculated and updated report from Mr Potgieter, as well as
any consequential costs incurred for it to be made an order of Court.
17
7. The plaintiffs claims for past medical-and hospital expenses and
general damages are postponed to the pre-trial roll of 17 February 2024
for later adjudication.
On behalf of Plaintiff:
On behalf of Defendant:
Adv DR Thompson
Instructed by:
PAS Attorneys
c/o Webbers Attorneys
BLOEMFONTEIN
e-mail: vj@webberslaw.com
Ms C Bornman
Instructed by:
Office of the State Attorney
BLOEMFONTEIN
e-mail: charleneb@raf.co.za