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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 1827/2013
In the matter between:
ADVOCATE PATRICK MaCKENZIE N.O.
(in his capacity as Curator Ad Litem to Plaintiff
M[...] Y[...] B[...] (“Mr B[...]”)
and
THE ROAD ACCIDENT FUND Defendant
JUDGMENT
___________________________________________________________________
ANDREWS, AJ
Introduction
[1] This is an action brought by a duly appointed curator ad litem , Advocate
Patrick MaCkenzie (“the Plaintiff”) for compensation in terms of s 17(1) of the Road
Accident Fund Act 1 for the loss or damage suffered by Mr M[...] Y[...] B[...] (“Mr
B[...]”) as a result of bodily injuries which Mr B[...] suffered in a motor vehicle
accident on 17 December 2008, when he was 16 years old. Mr B[...] was a pillion
passenger on a motor cycle when it was struck by another vehicle.
[2] The issue of liability was conceded. The matter was partially settled at a
previous hearing on 3 November 2021 , in respect of general damages as well as an
interim payment in respect of loss of earning. The remaining issues for determination
included the c laim for the balance of Mr B[...]’s past and future loss of
earnings/earning capacity ; t he claim for the appointment of a curator bonis to Mr
B[...]; alternatively, for the creation of a trust to administer the net proceeds of the
awards granted herein on behalf of Mr B[...] and a claim for appropriate costs orders
at the conclusion of the action.
[3] The Defendant was ordered to furnish the Plaintiff with a s 17(4)(a)
undertaking in respect of the future costs of Mr B[...], which still remains outstanding.
The Plaintiff seeks an order directing the Defendant to comply.
Historical Background
Hearing on 2 November 2021
[4] On 2 November 2021 an Order dated 3 November 2021 , was agreed to
between the parties; the salient terms whereof included inter alia that:
(a) The Defendant was ordered to pay the Plaintiff an amount of R2.9 million ,
which amount was subsequently paid by the defendant , comprising of the
following two amounts:
1 Act 56 of 1996.
(i) R1.5 million in full and final settlement of Mr B[...]’s claim for general
damages and
(ii) R1.4 million towards Mr B[...]’s still to be determined claim for past and
future loss of earnings/earning capacity.
(b) The Defendant was ordered to furnish the Plaintiff with a s 17(4)(a)
undertaking in respect of the future costs of Mr B[...], which undertaking had not
been furnished a s at the time of the hearing of the matter. As previously stated,
the Plaintiff seeks an order directing the Defendant to furnish the said
undertaking.
[5] The trial was postponed for the determination of the Plaintiff’s remaining
claims.
The curator bonis application
[6] Mr B[...]’s mother launched an application on 5 September 2019, under case
number 14244/19 (“the curatorship application”) in terms of which an order was
granted on 11 September 2019 (“the curatorship order”), that inter alia ordered:
(1) The Plaintiff is appointed as curator ad litem to the minor for the purposes
of:
(i) assisting Mr B[...] in the management and conduct of this action;
and
(ii) investigating the question of whether or not Mr B[...] is capable
of managing his own affairs.
(2) The Plaintiff was directed to furnish a report to the court indicating:
(i) whether a curator bonis ought to be appointed to administer Mr
B[...]’s estate and any damages award that may ultimately be
made in favour of Mr B[...], as well as the necessity or otherwise
of the said curator bonis being required to provide security to the
Master; and/or
(ii) whether a trust ought to be founded and registered for the
administration of Mr B[...]’s estate.
(3) The Applicant in the curatorship application was granted leave, upon
receipt of the reports of the curator ad litem and the Master of the Court, to
make an application on the same papers, duly supplemented if necessary,
for an order:
(i) declaring Mr B[...] incapable of managing his own affairs;
(ii) appointing a curator bonis to administer Mr B[...]’s estate and/or the
founding and registration of a trust for the administration of Mr
B[...]’s estate; and
(iii) any necessary ancillary relief that the court may deem fit.
(4) It was further ordered that the costs of such application, the costs of the
curator ad litem as well as the costs of the proposed application for the
appointment of a curator bonis and/or the founding and registration of a
trust for the administration of Mr B[...]’s estate, shall stand over for
determination or settlement as part of a RAF action to be instituted against
the defendant on Mr B[...]’s behalf, being the present action.
[7] Pursuant to the curatorship order, the Plaintiff claims the following costs,
fees and expenses in this action:
(5) The costs of the curatorship application to date hereof and any further
costs still to be incurred therein, including but not limited to the
following costs:
(i) the costs of the curator ad litem;
(ii) the costs of counsel; and
(iii) the reasonable fees and expenses o f any expert witnesses
appointed for the purposes of such application.
(6) The fees of any curator bonis appointed pursuant to the curatorship
application, for his/her administration of the monies entrusted to
him/her to administer on behalf of Mr B[...], calculated at the rate of
10% of the total capital amount.
(7) The expenses, if any, incurred by any curator bonis appointed, in order
to furnish security to the Master for his/her aforesaid administration.
(8) Alternatively, and should a trust be established, the Plaintiff claims
payment of the reasonable costs, fees and expenses (to be determined
by the court) i n relation to the creation and administration of a suitable
trust to administer the net proceeds of the awards made in this action
on behalf of Mr B[...] represented by the plaintiff herein.
Preliminary issues agreed to between the parties at the hearing
[8] The parties had considerably curtailed the issues for determination in
relation to the claim for loss of earnings/earning capacity at the hearing. In this
regard, the parties filed a joint minute in respect of the parties’:
(i) Occupational therapists, namely Ms Elise Burns -Hoffman for the Plaintiff and
Ms Tarryn Cawood for the Defendant2;
(ii) Clinical Psychologists, namely Ms Joalida Smit for the Plaintiff and Dr
Frances Hemp for the Defendant3;
2 Index B, pages 1 – 3.
3 Index B, pages 4 – 6.
(iii) Orthopaedic Surgeons, namely Dr McGuire for the Plaintiff and Prof GJ Vlok
for the Defendant4; and
(iv) Industrial Psychologists, namely Dr Peter Whitehead for the Plaintiff and Ms
DV Letsie for the Defendant5.
[9] At the commencement of the trial, Advocate Crowe , SC , Counsel for the
Plaintiff made an application in terms of Rule 38(2) for an order that the evidence to
be adduced at the trial in respect of 7 of the Plaintiff’s expert witnesses , be given on
affidavit. The Defendant’s attorney, Ms Thomas, placed on reco rd that the
Defendant had no objection to th e application , subject to the reservation that the
Defendant did not regard itself as bound by the calculation of the Plaintiff’s actuary
and could contend for an alternative award.
[10] The Court, a fter perusing the respective affidavits of the Plaintiff’s expert s,
namely, occupational therapist, Ms Burns-Hoffman; clinical psychologist, Ms Joalida
Smit; orthopaedic surgeon , Dr McGuire; neurologist, Dr Alison Richardson;
psychiatrist, Dr Larissa Panie ri-Peter; neurosurgeon, Dr Shafiek Parker and actuary,
Mr Daniel Saksenberg, 6 was satisfied that t he deponents to all of these affidavits
confirmed the contents of their expert reports , and where applicable, the contents of
the Joint minutes which they conducted with their counterparts for the Defendant. In
addition, they confirmed the opinions expressed by themselves therein and that the
documents were compiled by them ; were to the best of their knowledge and belief
true and correct, were in their own words, were compiled for the assistance of the
court, and accurately reflected their findings and opinions in the matter relating to Mr
B[...].
[11] The Court, after considering the submissions made by the parties , in the
exercise of my judicial discretion, ordered that the evidence of the aforementioned 7
expert witnesses of the Plaintiff be given at the trial on affidavit and admitted such
4 Index B, page 7.
5 Index B, page 8 – 17.
6 Index C, Items 1, 2, 4, 5, 6, 7 and 8; Plaintiff’s Rule 38(2) affidavits by experts.
affidavits in evidence in terms of Rule 38(2). The court was accordingly satisfied that
the Defendant had no objection to this procedure and that doing so would involve the
saving of considerable costs and considerable time of the court . The Court was of
the view that it would be ultimately fair in the circumstances to allow th e evidence on
affidavit.
[12] The Plaintiff’s trial bundle was received into evidence as exhibit “A” on the
basis that the documents contained therein are true copies of the originals and may
be admitted in evidence without further proof to serve as evidence of what they
purport to be as contemplated in rule 37(6)(k).
Opening Addresses
[13] Adv M Crowe, placed on record that the Plaintiff would rely on:
(i) the evidence of the 7 aforesaid Rule 38(2) affidavits of the Plaintiff’s experts;
(ii) the aforesaid 4 joint minutes between experts for both parties;
(iii) the documents in the trial bundle; and on the evidence of 2 witnesses,
namely:
(a) Mr B[...] and
(b) the Plaintiff’s expert industrial psychologist, Dr Peter Whitehead.
[14] Ms Thomas placed on record that the Defendant would not be calling any
witnesses.
Summary of the Evidence
[15] Dr Shafiek Parker (“Dr Parker”), the Plaintiff’s expert neurosurgeon , whose
evidence was admitted by way of the Rule 38(2) affidavit , comprised of his expert
witness report dated 27 May 2010 7. There was no joint minute as the Defendant did
not appoint a neurosurgeon.
[16] Dr Parker, in his report stated that Mr B[...] was a passenger motor cyclist
victim who was involved in an accident on 17 December 2008. He described that Mr
B[...] suffered a head injury and a fracture of va rious bones in the left forearm and
left hand and was taken to Tygerberg Hospital (“ TBH”) by ambulance where he
received surgery to his left hand to reduce the fractures and insert K wires.
[17] Mr B[...] was admitted to TBH from the date of the accident until his
discharge on 29 December 2008. Dr Parker consulted with him on 24 May 2010. Mr
B[...] was treated by a neurosurgeon at TBH and a CT scan of the brain was taken
which revealed a traumatic suba rachnoid haemorrhage over the right parietal area,
blood in the fourth ventricle and multiple punctate haemorrhages involving the right
temporal, left frontal, right frontal and left temporal areas. The basal cisterns were
patient and the midline central.
[18] Dr Parker further explained that Mr B[...] was given oxygen therapy, epanutin
and was admitted to the neurosurgical ward for neuro observation. It was noted by
the neurosurgeon that he had suffered diffuse axonal injury and what appeared to be
subarachnoid haemorrhage. Mr B[...] had fractures of the radius and ulnar long
bones in the forearm and his temperature was elevated at 37 degrees. His Glascow
Coma Scale (“GCS”) score ranged from 12/14 to 14/14 over the period of his
admission a nd by 27 December 2008 was 15/15 and the orthopaedic surgeons
thereafter took over his management . Mr B[...] was thereafter discharged from the
neurosurgery department.
[19] Dr Parker recorded that he consulted with Mr B[...]’s mother who was called
to the scene of the accident where she found her son moaning and groaning but not
recognising her or saying any audible words. She informed Dr Parker that t he
ambulance had already arrived . Mr B[...] was transport ed by ambulance to Groote
Schuur Hospital, where he was seen in the trauma unit and th ereafter transferred to
7 Index D, pages 1 – 17.
TBH. Mr B[...]’s mother explained that she accompanied him in the back of the
ambulance to TBH. According to Mr B[...]’s mother, he still did not recognise her on
the way to TBH. She further explicated that h er son “ came round” on Sunday 21
December 2008. It was only then that he recognised his parents and other people
present, but he could not recall their names, he only recognised their faces. By the
time Mr B[...] left the hospital, he seemed to be orientated, although his speech was
somewhat slurred and physically he felt weak and had to be assisted to the car.
[20] Mr B[...] informed Dr Parker that he experienced inter alia , headaches at
times and was also having back pain in the lumbosacral area and had no epileptic
episodes. According to Dr Parker, Mr B[...] constantly repeated things, as if he had
not mentioned them previously. At the time of his consultation Dr Parker observed
that Mr B[...] had difficulty concentrating and focusing . He also had pain in his left
hand, where he received surgery. Dr Parker further noted that Mr B[...] could not pick
up heavy articles and could not grip properly with his hand. Mr B[...] mentioned to
him that he forgets things.
[21] Mr B[...]’s mother reported to Dr Parker that he was very moody, quick
tempered, impatient and had become stubborn. Mr B[...] expressed that he did not
want to live at home with his parents. He was also suicidal.
[22] Further information recorded was that Mr B[...] was in Grade 12 at the time
of the consultation , having never failed a grade . He explained to Dr Parker that
despite working harder than before , he found it difficult to cope in terms of the
volume of work . Mr B[...] expressed that he intended to study mechanical
engineering at the College of Cape Town. Dr Parker articulated that Mr B[...] comes
from a family which appears to be upwardly mobile ; a level -headed family, where
social norms and rules are applied
[23] Dr Parker’s assessment of Mr B[...]’s injuries were as follows:
(i) A severe concussive head injury , explained by the significant CT scan
findings and by the prolonged period Mr B[...] took before reaching a GCS of
15/15, and that he remained confused for a good few days (about 1 week if
not longer);
(ii) Mr B[...] also suffered injuries to the left hand and left forearm which left
significant scarring around the left forearm;
(iii) Four months short of 2 years after the accident Mr B[...] still ha d problems
with concentration, namely memory disturbance, personality change in the
form of being stubborn and quick tempered;
(iv) He still gets occasional headaches when he concentrates for a long time and
(v) He also has significant scarring around his left forearm.
[24] Dr Alison Richardson , (“Dr Richardson”), the P laintiff’s expert
neurosurgeon provided a report following a consultation with Mr B[...] on 1 November
20188. Her evidence was admitted by way of rule 38(2) affidavit9. There was no joint
minute with the Defendant’s neurologist, Dr Kessler, who had passed away in the
interim. Dr Richardson’s sources of information included the joint minutes between
the parties’ clinical psychologists and the neurological assessment report of the
Plaintiff’s expert clinical psychologist.
[25] Dr Richardson noted the following in relatio n to the head injury and sequela
of Mr B[...]. In this regard she stated that Mr B[...]’s GCS on admission was 10/15,
with a protracted period of reduced consciousness, a 5 day stay in ICU, and
extended post -traumatic amnesia for approximately 2 weeks ; indicating a
moderate/severe concussive head injury. She added that a CT scan showed a
significant head injury with a right parietal traumatic subarachnoid haemorrhage, and
multiple punctuate haemorrhages in the right temporal, left frontal, right frontal and
left temporal areas. She stated that his head injury was classified as severe.
8 Index D, pages 79 – 93.
9 Index C, pages 10 – 12.
[26] She further noted the following during her assessment. Behaviour during
testing was somewhat fatuous (over friendly) and a little immature (which was also
noted by the defendant’s clinical psychologist). Dr Richardson observed that Mr
B[...] talked off topic. His autobiographical memory was poor and insight varied. On
formal testing, Mr B[...] was fast and fluent on easy items but plateaued quickly with
complexity. His verbal reasoning and information processing were borderline
impaired, w ell below pre -morbid abilities , which the clinical psychologists had
estimated in their agreed joint minute to have been in the average range before the
accident. Dr Richardson’s c ognitive assessment confirmed a head injury with left
frontal (executive fun ctioning), temporal (verbal memory and new learning) and
subcortical (learning and complexity) impairments.
[27] Mr B[...] showed prominent frontal lobe injury, involving:
(i) Poor initiation of verbal responses and access to semantic knowledge;
(ii) Impaired working memory for complex verbal information;
(iii) Weak cognitive flexibility (switching between responses);
(iv) Borderline impaired verbal abstract reasoning;
(v) Weak organisation of complex information;
(vi) Weak motor skills mapping onto frontal motor and premotor areas;
(vii) Prominent error pattern on mats and list learning and
(viii) Slow learning of new information in the absence of a frank memory
impairment.
[28] Dr Richardson’s findings were consistent with reported changes in
personality, behaviour and sociability. She also observed Mr B[...]’s self-reported
tendencies to withdraw and avoid meaningful relationships despite being cheerful on
the surface . He displayed increased frustration and anger outbursts at home and
evidence of paranoid ideation association with over interpretation of others’
intentions. His variable social judgment and insight into his own behaviour were also
observed during the assessment.
[29] Dr Richardson mention ed that the Defendant’s clinical psychologist, Dr
Hemp, had a more positive prognostic outlook based on Mr B[...]’s success at the
time as a Call Centre Operative at Amazon, but noted that he was summarily
dismissed from Amazon on 1 March 2021 as a result of the following:
(i) during October 2020 he made 229 phone contacts where he disconnected
first; and
(ii) during January 2021 there were 2 incidences where he made “ unprofessional
behaviour towards customers, colleagues and suppliers (including visitors or
clients of amazon)”, and
(iii) on 1 occasion “discussed personal medical information”.10
[30] Dr Richardson’s prognostic outlook was more cautious, based on the age
and extent of the injury , his behaviour during the assessment and reported
personality changes consistent with a frontal lobe injury occurring in the context of
weak information processing impacting new learning. She commented that a frontal
lobe injury combined with diffuse/subcortical injury usually has a poor progno stic
outcome due to the additive effect of inflammatory processes affecting white matter
recovery over time due to diaschisis . This was explained to mean a process where
brain functions can worsen in the longer term as poor neuronal firing in the affected
area results in weakening of intact brain areas away from the site of injury. She
commented that an injury in adolescence , when the white matter architecture
supporting frontal lobe development proliferate, together with poor neuronal firing to
and from t hose areas, results not only in poorer long -term recover y, but a
deterioration in areas not directly affected by the original injury. She stated that the
10 Trial bundle, letter of dismissal letter dated 1 March 2021 at pages 17-18.
likelihood of further slow deterioration with age due to these processes was a real
possibility and could not be ruled out.
[31] Regarding work related factors , Dr Richardson commented that Mr B[...]’s
head injury is both subtle and prominent. It is subtle because some executive
memory and reasoning abilities are preserved. However, higher order functions did
not develop in line with his chronological age, given the enduring frontal lobe deficits
as a result of the injury. Thus, at nearly age 30 at the time of the assessment, Mr
B[...] presented with difficulties negotiating complexity, was slow to learn new
information (but when learnt can retain that); his multitasking and problem solving
was weak (but when given a structured plan he could execute this) and his social
judgment was variable depending on the level of stress he experiences; under
pressure self-monitoring skills cannot be recruited and therefore inappropriate social
interactions are more likely. She consider ed the position as a Call Centre Operative
to be ideal for Mr B[...], but nevertheless, had reservations as to how this may play
out in the longer term. Dr Richardson stated that Mr B[...] would not cope with a
more senior role and that he had plateaued in his career; that his frontal lobe injury
made him vulnerable to unemployment as he may not cope well with change or
additional pressure; that his thinking style of high paranoia, limited insight and slow
processing may make hi m vulnerable to mental breakdowns. This may be more
likely with stress. As a result, Mr B[...] may be vulnerable to psychiatric breakdown
in the future. Dr Richardson requested that a curator ad litem be appointed due to
the complexity of the legal process and stated that a curator bonis may be required
in the future, should there be changes associated with his cognitive and/or emotional
functioning.
[32] Regarding future prognosis, Dr Richardson stated th at Mr B[...]’s frontal lobe
injury and poor information processing means that he struggles to cope, both
cognitively and emotionally with complexity. This was explained to mean, it would
impact Mr B[...]’s ability to multitask, to adapt to change in h is environment, cognitive
flexibility, problem solving and managing the competing demands of everyday life.
Mr B[...] was considered to be a highly vulnerable adult because of his mild
expressive difficulties and childlike interaction style . He had a limited capacity for
abstract, complex problem solving.
[33] According to Dr Richardson, Mr B[...] is e motionally at risk of paranoid
thinking, volatility and emotional outbursts as the frontal lobe mechanisms required
to process and inhibit these factors are prone to decompensation during stress. Mr
B[...]’s role as a carer, supporting his mother who wa s his main support before her
illness, will have a negative impact on his coping over time. Dr Richardson’s is of the
view that the likelihood of a psychiatric breakdown in the future is high . In addition,
she stated that a spiral of unemployment, isolat ion and lack of stimulation could
ensue, resulting in poorer cognitive functions with age . Dr Richardson recommended
that all efforts should be made to support Mr B[...]’s independence, reduce his stress
in order for him to maintain employment and put the necessary support in place to
provide care for his mother, thus lessening the burden of caregiving on him. She
opined that overall, in the long term, Mr B[...]’s long-term prognosis is poor. Dr
Richardson expressed concern that with Mr B[...]’s vulnerability and without specific
support at home, financially, emotionally and at work he may not be able to maintain
his current functioning in the very long term.
[34] Dr Richardson recommended the appointment of both a curator ad litem and
a curator bonis , stating that Mr B[...] is unlikely to cope with the family finances,
running the household and remaining employed, that he is a vulnerable adult who
may be prone to exploitation, that his in sight and social judgment is limited. She
further recommended psychiatric treatment in the future, homecare support for his
mother and that psychological therapy should be made available , as it may prevent
future psychiatric complications. It was suggested that every stress mitigating effort
should be made to ensure that Mr B[...] stays in employment, to prevent isolation and
lack of stimulation.
[35] Ms Joalida Smit (Ms Smit), the Plaintiff’s expert clinical psychologist , also
provided evidence by way of her Rule 38(2) affidavit , which comprised of 2 expert
reports, dated 2 November 2018 11 and 27 April 2022 12 respectively as well as the
joint minute13 between herself and the Defendant’s expert psychologist, Dr Hemp.
11 Index D, pages 40 – 65.
12 Index D, pages 66 – 78.
13 Index B: pages 4 – 6.
[36] The joint minute dealt with Mr B[...]’s condition pre-accident in terms of which
they agree d that Mr B[...] had average potential pre -morbidly, could have passed
Grade 12 and could have completed college courses. While Dr Hemp did not think
that Mr B[...]’s school marks indicated university potential, Ms Smit considered that
his dream of becoming an electric/mechanical engineer was not unrealistic, given his
aptitude for mathematics prior to the accident, his passion for fixing cars and all
things mechanical. The high value placed on education in the family and his oldest
sister obtaining a Master’s Degree in nuclear engineering.
[37] They noted further that Mr B[...]’s initial GCS and GCS on admission to
hospital (10/15 and 11/15) would rate his diffuse brain injury as moderate, but the
fact that he remained confused throughout his time in hospital and an estimated
post-traumatic amnesia of 2 weeks, would classify the b rain injury as severe. In
addition, they noted that Dr Parker had considered the injury was severe as there
were significant CT scan findings.
[38] Mr B[...] managed to pass Grade 12 on the second attempt, but needed to
change his mathematics subject from pure mathematics to mathematics literacy. He
did not obtain an endorsement or attain the University level entrance requirements.
Furthermore, they agree that Mr B[...] would have been able to achieve a higher level
of education in his pre-morbid state.
[39] In the assessment findings the experts agree on the following:
(i) that, despite variations in score patterns, Mr B[...] suffered a moderate to
severe brain injury, with frontal impairment accounting for his difficulties with
executive functions, and frontal and right parietal impairment producing
enduring personality changes;
(ii) they recommend ed psychotherapy/psychiatric treatment should be available
when needed. They also recommend ed the appointment of a curator ad litem
as Mr B[...] may not understand the complexity of legal procedures, and they
stated that it is not clear that Mr B[...] needs a curator bonis as he is working
and independent in many of the instrumental activities of daily living, but some
protection of any funds awarded was recommended.
[40] It was submitted that i nasmuch as Mr B[...] had already been compensated
for general damages, the orthopaedic injuries he suffered to his left arm have a more
limited relevance to the claim for loss of earning capacity. The orthopaedic injuries
as encapsulated in the joint minute of the occupational t herapists14 included that Mr
B[...] suffered a fracture of the distal third of the 2 long bones in the left forearm
which connect the elbow to the wrist , namely the radius and the ulnar . He also
suffered an intravenous articular fracture of the base of the thumb metacarpal. He
also suffered dislocations of the bases of the second and third carpometacarpal joint.
[41] It was further recorded that Mr B[...] underwent 2 surgical procedure s and
treatment. They noted that Mr B[...] has residual functual limitations with regard to:
(i) reduced range of movement in the left wrist on flexion and extension;
(ii) reduced grip strength in the left hand; and
(iii) he experiences pain in the left upper limb when working against resistance.
[42] In relation to his functional ability, they agree that Mr B[...] is capable of
independent self-care, transportation to and from work, attending to a sedentary up
to light duty position of work; and following and attending to the routine demands of
work in a call centre, as was his position at the time of their assessment.
[43] With regard to Mr B[...]’s employability, they agree that he is suited to a
position of light physical demand, made up of routine and repetitive components and
is unsuited to work of any heavy physical demand and/or that requires the consistent
engagement of higher cognitive executive functioning with regard to sustained
concentration, memory recall, judgment, problem solving and decision making.
14 Index B, pages 1 – 3.
[44] In their joint minute15 the expert orthopaedic surgeons for the parties agree
that there are already minor degenerative changes in the left wrist and fracture
areas; that the radius and ulna fractures have healed , and that the instrumentation
must be removed in the future. They note d that Mr B[...] has a fu ll range of
movement in the left forearm with slight restriction of movements of the left wrist.
Furthermore, t hey agree that the degenerative changes are progressive and be
treated conservatively. There is a 50% chance for an arthrodesis which is a surgical
procedure to fuse 2 or more bones together to form a single solid bone to move a
joint of the left wrist in future. They also agree that Mr B[...] will be able to work until
retirement age in the open labour market, however due to his left wrist he will have
difficulty in doing heavy labour type of work, but can do lighter clerical work until
retirement age. There is no reason for early retirement due to his orthopaedic
injuries. For his head injuries, they refer to the relevant experts.
[45] M[…] Y[...] B[...], (“Mr B[...]”), in essence confirmed and expounded upon
his personal and family background; education and training as well as his
employment background as encapsulated in the report of the Plaintiff’s industrial
psychologist, Dr Peter Whitehead, dated 2 March 2023.16
[46] In that regard , h is father had a Grade 6 qualification and worked as a
qualified boilermaker/pipe fitter and his mother completed a Grade 11 qualification
and worked as a regional secretary for Sage Life. Mr B[...]’s father is deceased and
his mother had suffered a stroke. He has 2 older sisters. His elder sister, Wardah,
has a Grade 12 qualification and a Master’s Degree in nuclear power from UCT, a
National Diploma in commercial administration and a B. Tech in office management
and technology from the Cape Peninsula U niversity of Technology. She also has a
diploma in paralegal studies as well as a higher diploma in educational practices and
adult learning from UNISA . In addition, she has an entry level nuclear power plant
operator’s certificate and senior reactor oper ator certificates from Koeberg. She
presently lives Abu Dhabi in the UAE. The younger of his 2 sisters, Rukeyh,
completed a Grade 12 qualification and a call centre agent short course and
15 Index B, page 7.
16 Index D, pages 180 – 218, see in particular para’s 6 – 8.
currently works at an investment company in Johannesburg. Mr B[...] testified that he
was married in 2023 and lives in his own home with his wife.
[47] Mr B[...] narrated that the accident occurred on 17 December 2008 after he
had written his Grade 10 examinations. H e articulated that he passed Grade 10 and
was pro moted to Grade 11 in 2009. His Grade 11 term 1 and term 2 results
indicated that there was a significant fall of his results and that he had failed term 2.17
Mr B[...] further orated that he managed to pass Grade 11 and then failed Grade 12
at the first attempt in 2010. He then adjusted his mathematics subject from pure
mathematics to mathematics literacy and managed to pass Grade 12 at the second
attempt in 2011. Mr B[...]’s matric certificate dated December 2011, indicated that he
met the minimum requirements for admission to diploma or higher certificate study.18
[48] Mr B[...] further testified that since leaving school he attempted a 3 -month
bridging course in mechanical and electrical engineering in an attempt to reach the
minimum requirements for admission to university, but was unsuccessful. He also
did a 3-month occupational readiness course at the College of Cape Town, which he
passed.19 It came to light that w hen Mr B[...] was assessed by Dr Whitehead in May
2022 and February 2023, he was doing a 3-month data science short course at
Damelin College, but had not completed it. Mr B[...] provided an exposition on his
post-morbid vocational career and earnings since leaving school as at the end of
2011 to date.
[49] Dr Peter Whitehead (“Dr Whitehead”) , tabulated Mr B[...]’s post-morbid
career path using Mr B[...]’s earning data as sourced from collateral information
obtained from employers and from Mr B[...]’s payslips from his various employers
such as Capita, Amazon, Sigma and his current employer, WNS Global ; which span
the period from 31 August 2018 to 31 May 2024. 20 The said two post-morbid career
tables were further refined and were included again in the joint minute of the
industrial psychologists.21 It is apparent that these refined results have been utilised
17 Index D, para 7, pages 187 – 188.
18 Trial Bundle, Exhibit “A”, page 2.
19 Trial Bundle, Exhibit “A”, Certificate, page 3.
20 Index D, Table 12 and 13, pages 213 – 214.
21 Index D, pages 12 – 16; See also Index D, Tables 3 and 4, pages 8 – 17.
by the actuary as the basis for his calculation of Mr B[...]’s post-morbid earnings in
the actuarial report dated 18 July 2024, as per the actuary’s Rule 38(2) affidavit22.
[50] The income earned by Mr B[...] in the aforesaid post-morbid career has been
agreed upon by the industrial psychologists in their joint minute .23 The industrial
psychologists agree that on average, during the period from December 2022 until
May 2024, he earned R8 450.53 per month (R8 019.47 per month by way of salary
and benefits plus an average monthly commission of R431.06) .24 This calculation is
predicated on Mr B[...]’s earnings in his present employment at WNS Global, which
is based on Mr B[...]’s payslips. The actuary considered the figure of R8 450.53 to
calculate Mr B[...]’s annual income to amount to R101 400.00 (R8 450.00 x 12
months), since October 2022.
[51] Dr Whitehead testified that Mr B[...]’s pre-morbid career path was agreed
upon by the industrial psychologists for the parties in their joint minute, and as set
out in table 1 and table 2 thereof . 25 In amplification, Dr Whitehead explained during
evidence that he and his counterpart for the Defendant had agreed to the less
optimistic pre -morbid scenario of the Defendant’s expert psychologist Dr Hemp ,
namely Mr B[...] achieved a post-matric national diploma or certificate, as opposed to
the more optimistic scenario postulated by the Plaintiff’s expert psychologist that
envisaged Mr B[...], obtaining a university degree and becoming an
electric/mechanical engineer.
[52] Therefore, in c onsidering Mr B[...]’s average pre-morbid potential, he would
have completed his Grade 12 qualification and would have met the requirements for
a national diploma or certificate studies which would have allowed him to work in
both the corporate and non -corporate sector. Due to his youth, they agreed to
consider a generic career path to determine Mr B[...]’s most likely career progress
and earnings. They agreed to use the Paterson Job Grading System to predict future
career growth and earnings. Dr Whitehead further explained that system in his
22 Index D, pages 166 – 179; See also Index C, pages 22 – 24;
23 Index B , pages 14 – 16 as per table 4: Post -morbid earnings to date based on the payslips
contained in the Plaintiff’s Trial Bundle.
24 Index D, page 173; Actuarial Report, page 8.
25 Index B, pages 9 – 11.
evidence with reference to the “ corporate survey earnings ” table, and explained the
meaning of the various salary grading bands from the A band up to the F band, and
beyond that. 26
[53] They further agreed that with increased work experience, knowledge, skills
and abilities Mr B[...] would have experience upward career mobility and increased
earnings, probably until between the age of 45 and 50, whereafter his employment
career and earnings would ha ve plateaued. They tabulated the agreed likely pre -
morbid career path in tables 1 and 2 of the joint minute,27 with the agreed Paterson
Grading System B3, C1, C2 and C3 earnings in Table 2 thereof being the median
“total package ” earnings set out in the 2 023 “ corporate survey earnings ” table 28
which Dr Whitehead proved in evidence, as follows:
January 2011 to December 2014 He would have completed a 3 -year
national diploma, for which they allowed
an additional year for the completion of a
diploma in the event of illness/failing of
subjects.
January 2015 to December 2016 (2
years)
Commence employment as a trainee in
the cor porate sector on a 2 -year fixed
term contract, probably only earning basic
salary of R6 500 per month, but with no
additional benefits.
January 2017 to December 2023 (6
years)
He would have commenced permanent
employment on a Paterson B3 Grade
earning R303 000 per annum, as per the
aforesaid corporate survey earnings table
and including additional benefits.
January 2024 to December 2030 (6
years)
He would have commenced employ ment
on a Paterson C1 Grade earning R505
26 Plaintiff’s trial bundle, pages 47 – 48.
27 Index B, pages 9 – 11.
28 Plaintiff’s Trial Bundle, pages 49 – 50.
000 per annum , as per the aforesaid
corporate survey earnings table and
including additional benefits.
January 2031 to December 2037
He would commenced employment on a
Paterson C1 Grade earning R550 000.00
per annum, as per the aforesaid corporate
survey earnings table and including
additional benefits.
January 2038 to age 65
His career would have plateaued on a
Paterson C3 Grade earning R641 000.00
per annum, as per the aforesaid corporate
survey earnings table and including
additional benefits.
They agreed that that his employment
career and earnings would have reached
a plateau at that level, which would have
then remained constant in real terms (i.e.,
taking inflation into account until he retired
20 years later at age 65.
[54] Dr Whitehead testified that he and his colleague took a conservative, middle
of the road approach in formulating this pre-morbid career path and in agreeing upon
the likely earnings in that career path. Their agreed findings, in tables 1 and 2 of the
joint minute29 was utilised by the actuary in the tables contained in paragraph 4(a)
with heading “But for the accident ” in the actuarial report 30 and in the actuarial
calculation.31
[55] During cross-examination, Dr Whitehead was asked to clarify why he elected
to use the figures based on Mr B[...]’s total package per year and not the basic
salary. To this he responded that when employees become permanent, they receive
certain benefits which increases their package per annum. He was also questioned
29 Index B, pages 10 – 11.
30 Index B, pages 167 – 169.
31 Index B, page 169.
about why he projected that Mr B[...] would be promoted three times in his lifetime
before age 45, every 6 years, to which he responded that it was reasonable. Dr
Whitehead used the analogy of a person who was employed in t he army or in the
police force to illustrate his reasoning in this regard. He was challenged on the basis
that Mr B[...] was not functioning in that vocation.
[56] In reference to the collateral information pertaining to the Plaintiff’s past and
current emp loyer, i t was highlighted that Mr B[...]’s employers didn’t have any
complaints about him in the workplace. His work ethic was good and nothing
extraordinary was observed with regards to his personality. In this regard, Dr
Whitehead orated that there is a possibility that Mr B[...] will not be able to do his job
in future because of the injuries that he sustained in the accident.
Submissions by the Plaintiff
[57] Counsel for the Plaintiff submitted that t he agreements between the
industrial psychologists in their joint minute are, to some extent, based on the agreed
opinions expressed by the occupational therapists, clinical psychologists and
orthopaedic surgeons for the parties as minuted in their aforesaid joint minutes.
These agreed figure s were utilised by the actuary in his calculations in the actuarial
report.32
[58] It was further submitted that the court should accept:
(i) the basis 2 calculation (based on a 50% contingency deduction being
applied to the post-morbid uninjured career path), alternatively
(ii) the basis 1 calculation (based on a 40% contingency deduction being
applied to the post-morbid uninjured career path); alternatively
(iii) a figure midway between the basis 1 and 2 calculations.
32 Index B: pages 178 – 179.
Principal Submissions on behalf of the Defendant
[59] It was highlighted on behalf of the Defendant that regard be had to the
reasons why the Plaintiff left his various employments, which were not due to the
accident. The Plaintiff testified that he was able to do physical work for a period of
two years. It w as only after being asked if the injuries didn’t affect him, when he
responded that it did. Furthermore, the Plaintiff was dismissed at Amazon which was
not due to the accident.
[60] It was further contended that the Plaintiff’s mathematics results pre -accident,
indicated below average results. In this regard, his final average result for
mathematics in Grade 10 was 49.29%.
[61] The Defendant contended that a 50% contingency is not justified a s there
has already been a time lapse of 16 years post -accident. It was argued that Mr B[...]
was able to secure employment over the years. It was noted that he changes jobs
often, but there is no evidence that it was due to the accident. It was acknowledged
that Mr B[...] was a good witness. He was able to understand and comprehend what
was going on in court as well as the questions that was put to him. The Defendant
contended that this corroborates the collateral information obtained by Dr Whitehead
from Mr B[...]’s employer. It came to light that Mr B[...]’s employer is willing to give
him more responsibilities and/or duties in future considering his performance.
[62] It was furthermore submitted that the court is to have regard to the fact that
Mr B[...], has not lost any employment as a consequence of the accident. This, it was
argued, was confirmed by Mr B[...] himself. It came to light during the testimony of Mr
B[...] that he was given a final written warning at work, however, no evidence was led
as to the reasons therefor and/or whether it was related to the a ccident.
Furthermore, Mr B[...] was able to complete a short course after the accident. It was
also argued that his grade 10 results showed nothing extraordinary; which results
were not much different from his matric results.
[63] Ms Thomas, on behalf of the Defendant argued that 50% contingency is not
justified if regard is had to the good references received from Mr B[...]’s employers.
She opined that Mr B[...] is doing well for himself. The court was referred to the
matter of Lubisi v Road Accident Fund 33 wherein the court indicated that reliance
is to be placed on the evidence at hand.
Further submissions by the parties
[64] The court permitted the parties to make further submissions in clarification of
the suggested contingency calculations as set out in their respective proposed draft
orders. In this regard, t he Defendant submitted that standard contingencies ought to
be applied, namely a 5% contingency deduction be applied to the pre -morbid past
earnings and 15% to future pre-morbid earnings. The Defendant furthermore applied
35% contingency to the post -morbid uninjured career path . On the Defendant’s
calculation, it was submitted that an amount of R3 4 85 205.35 be awarded to M r
B[...] for loss of earnings.
[65] Counsel for the Plaintiff conceded that the Plaintiff’s actuary had not applied
the 5% contingency deduction to the pre -morbid past income and furthermore
conceded that it would be appropriate to do so. Two alternative recalculations
were prepared.
[66] Counsel for the Plaintiff identified a fundamental error in the Defendant’s
calculation in that:
(a) It is contrary to the express agreement between the i ndustrial
psychologists for the parties. In this regard, the Defendant utilised the pre -
morbid future career path not only in the p re-morbid scenario but also in the
post-morbid scenario.
(b) This, it was contended, is prejudicial to Mr B[...], as it falsely increases his
post morbid earnings and thereby serves to substantially reduce his damages.
33 (1484/2019) [2024] ZAMPMBHC 51 (19 July 2024).
[67] It was further contended that there is no basis for the Defendant to ignore
the post -morbid career path and earnings agreed upon by the industrial
psychologists. Furthermore, it was argued that the Defendant seeks to
decimate the actual damages suffered by Mr B[...] by not applying his agree d
post-morbid career path, which is substantially lower that the agreed pre -
morbid future career path. It was also illuminated that the Defendant failed to
consider the prior interim payment of R1.4 million from the damages on its
calculation which ultimat ely translates into an outstanding amount of
R2 085 205.35.
[68] The revised calculation by Plaintiff amounts to R4926 583 and R4 896 598
respectively on the 40% and 50% contingency calculations respectively.
Legal Principles
[69] The seminal judgment of Southern Insurance Association Ltd v Bailey 34
succinctly deals with the court’s approach to the enquiry into damages for loss of
earning capacity. In this regard, the court held:
‘Any enquiry into damages for loss of earning capacity is of its nature
speculative… All that the Court can do is to make an estimate, which is often a
very rough estimate, of the present value of the loss. It has open to it two
possible approaches. One is for the Judge to make a round estimate of an
amount which seems to him to be fair and reasonable. That is entirely a matter
of guesswork, a blind plunge into the unknown. The other is to try to make an
assessment, by way of mathematical calculations, on the basis of assumptions
resting on the evidence. The validity of this approach depends of course upon
the soundness of the assumptions, and these may vary from the strongly
probable to the speculative. It is manife st that either approach involves
guesswork to a greater or lesser extent. But the Court cannot for this reason
adopt a non possumus attitude and make no award.’
34 1984 (1) SA 98 (A) 113G-114A
[70] It is trite that a court has a wide discretion in allowing contingencies . In
Phalane v Road Accident Fund 35 the court crystallised the considerations as
follows:
‘Contingencies are the hazards of life that normally beset the lives and
circumstances of ordinary people (AA Mutual Ins Co v Van Jaarsveld reported
in Corbett & Buchanan, The Q uantum of Damages, Vol II 360 at 367) and
should therefore, by its very nature, be a process of subjective impression or
estimation rather than objective calculation (Shield Ins Co Ltd v Booysen 1979
(3) SA 953 (A) at 965G-H). Contingencies for which allowance should be made,
would usually include the following:
(a) the possibility of illness which would have occurred in any event;
(b) inflation or deflation of the value of money in future; and
(c) other risks of life such as accidents or even death, which would have
become a reality, sooner or later, in any event (Corbett, The Quantum of
Damages, Vol I, p 51).’
[71] The matter of RAF v Kerridge 36 distils the general rules that have been
established in regard to contingency deductions.
‘Some general rules have been established in regard to contingency
deductions, one being the age of a claimant. The younger a claimant, the more
time he or she has to fall prey to vicissitudes and imponderables of life. These
are impossible to enumerate but as regards future loss of earnings, they
include inter alia, a downturn in the economy leading to reduction in salary,
retrenchment, unemployment, ill -health, death, and the myriad of events that
may occur in one’s everyday life. The longer the remaining working life of a
claimant, the more likely the possibility of an unforeseen event impacting on the
35 (48112/2014) 2017 ZAGPPHC 759 (7 November 2017) at para 17; See also AA Mutual Insurance v
Van Jaarsveld 1974 (4) SA 729 (A).
36 2019 (2) SA 233 (SCA) at para 44.
assumed trajectory of his or her remaining career. Bearing this in mind, courts
have, in a pre -morbid scenario, generally awarded higher contingencies, the
younger the age of a claimant. This Court, in Quedes, relying on Koch’s
Quantum YearBook 2004, found [that] the appropriate pre -morbid contingency
for a young man of 26 years was 20% which would decrease on a sliding scale
as the claimant got older. This, of course, d epends on the specific
circumstances of each case but it is a convenient starting point.’
Discussion
[72] The contingencies ordinarily accepted by the RAF is 5% for past loss and
15% for future loss of earnings. The claim for the balance of Mr B[...]’s past and
future loss of earnings/earning capacity is based on the expert reports filed of record
and the joint minute of the Industrial Psychologists for the parties dated 17 July
202437, and is calculated in the actuarial report of Ivan Kramer CC , the consulting
actuaries dated 18 July 202438. As earlier indicated, these figures were revised after
the concession made on behalf of the Plaintiff that the actuary had not applied the
5% contingency deduction to the pre-morbid past income of Mr B[...].
[73] It is apparent from the joint minute of the expert industrial psychologists for
both parties39, namely Dr Peter Whitehead for the Plaintiff and Ms DV Letsie for the
Defendant, that they agree on all issues relating to the claim for Mr B[...]’s loss of
earning capacity. The only issue for determination by the court in respect thereof is
the question of the contingency deductions to be applied to the actuaria lly calculated
loss of earnings based on the said joint minute , being the actuarial report of the
Plaintiff’s actuary dated 18 July 202440.
[74] Mr B[...] made a good impression on this court. He was able to give a
detailed, logical and chronological expos ition of events. However, the court
considers that the long-term prognosis, as evident from the Joint Report of Dr Letsie
37 Index B, joint minutes, pages 8 to 17.
38 Index D, pages 166 to 179.
39 Index B, pages 8 – 17.
40 Index D, pages 166 – 169.
and Dr Whitehead, appears to be poor in that Mr B[...] will probably struggle to
maintain his current level of functioning in future.
[75] Mr B[...]’s post-morbid career after matriculating supports this prognosis as is
evident from the table below:
January 2012 to July 2012 He was unemployed.
August 2012 to 15 February 2013
He worked at Game (Kenilworth Centre) as a
sales assistant/cashier and stock controller.
16 February 2013 to 2 July 2013
He was unemployed.
3 July 2013 to 30 May 2014
He worked at Metropolitan Health doing a
learnership, where he worked in medical
claims assessing and premium membership.
31 May 2014 to 25 August 2014 He was unemployed.
17 October 2014 to 10 January
2015
He worked at Amazon.com as a customer
services associate.
11 January 2015 to 6 August 2017
He performed piece jobs, such as electrical
wiring, mechanical work, plastering and
woodwork.
7 August 2017 to 30 August 2018 He worked at Capita in customer service.
31 August 2018 to 1 March 2021
He worked at Amazon.com as a retail
associate. The eviden ce is that he was
dismissed from such employment and the
dismissal notice dated 1 March 2021 is at
pages 17 to 18 of the trial bundle.
2 March 2021 to 25 April 2021
He was unemployed.
26 April 2021 to 30 September 2021 He worked as a customer service associate
at Webhelp SA.
1 October 2021 to July 2022
He worked as a customer service associate
at Sigma SA.
August 2022 to September 2022
He was unemployed.
October 2022 to present He has worked as a customer service agent
at WNS Global.
[76] Although it was argued by the Defendant that the underlying reasons for the
changes to Mr B[...]’s employment does not appear to be as a consequence of the
accident, this court is to have regard to the test for a claim for loss of earnings or
earning capacity which has been aptly encapsulated in Rudman v Road Accident
Fund41 where the court held:
‘To claim loss of earnings or earning capacity, a plaintiff must prove the
physical disabilities resulting i n the loss of earnings or earning capacity and
also actual patrimonial loss’.
[77] The measure of proof is a preponderance of probabilities, which entails
proving that the occurrence of the loss is more likely than not. In the matter of
Union and National Insurance Co Limited v Coetzee 42 the court held that there
must be proof that the d isability gives to a patrimonial loss, which in turn will
depend on the occupation or nature of the work which Mr B[...] did before the
accident or would probably have done if he had not been disabled.
[78] From the assessments conducted by the expert psychologists for the Plaintiff
and for the Defendant and their joint minute , it is apparent that Mr B[...] had
suffered a moderate to severe brain injury with frontal impairment accounting for his
difficulties with executive function, coping with complexit y and enduring personality
changes. The clinical psychologists accepted that Mr B[...] had average academic
potential pre -morbidly as s tated earlier. The pre - and post -morbid careers of Mr
B[...] was agreed upon by the industrial psychologists for the parties, as well as the
income which Mr B[...] has earned in the post-morbid condition to date. Furthermore,
they agree as to the income which Mr B[...] will probably earn in the future in the
41 2003 (2) SA 234 (SCA)
42 1970 (1) SA 295 (A) AT 300 A
post-morbid condition, as well as the income which he probably would have earned
in the pre -morbid condition. Moreover, the experts agreed to consider a generic
career path to determine Mr B[...]’s most likely career progress and earnings for
reasons afor estated. They agreed to use the Paterson Job Grading System to
predict future career growth and earnings.
[79] Significantly higher than normal contingencies have been suggested for all
earnings into the future. This, it was argued , is because the contingency is to apply
for future earnings projected over the next 33 years. Therefore, the longer the period,
the higher the contingency. This is pre dicated on the aforestated prognosis that Mr
B[...] is unlikely to sustain employment. It bears mentioning that Dr Richardson’s
prognosis is that Mr B[...] is at risk of unemployment and emotional decompensation,
which was further premised on Mr B[...]’s recently experienced negative life events
which included the loss of career progression and his mother’s stroke and ill health
as well as his father’s passing. She anticipated that if Mr B[...]’s mother’s condition
deteriorated, it would impact on his ability to cope at work.
[80] I interpose to mention that although the court was referred to Lubisi (supra),
that matter is distinguishable from the matter in casu. In that matter the industrial
psychologist’s instruction to the actuary were based on facts that were not supported
by any evidence and inconsistent with any evidence led. It was held that the facts
that reliance was placed on should have been proved by admissible evidence. The
court could therefore place no reliance on the opinion of the industrial psychologist
insofar at it related to the information provided to the actuary. The court found that
past loss and future loss of earnings were therefore not proven.
Conclusion
[81] It is trite that a court has a very wide discretion with regard to contingencies
that must, be founded on a consideration of all the relevant facts and circumstances
of the matter. I am mindful that this discretion may not be usurped by the evidence of
the experts. An actuary’s evidence essentially serves as a guide to the Court. 43
43 RAF v Guedes 2006 (5) SA 583 (SCA) at para 8
Courts must jealously protect their role and powers as they are the ultimate arbiters
in any proceedings.44
[82] It is apparent that 3 out of the 4 contingency deductions to be made from the
actuarial calculations are common cause, namely:
82.1 5% contingency deduction to the pre-morbid past income;
82.2 15% contingency deduction to the pre-morbid future income and
83.3 0% contingency deduction to the post-morbid past income.
[83] The contingency deduction which remains in dispute is the deduction to be
made to the post -morbid future income. Counsel on behalf of the Plaintiff submitted
that it is not necessary to obtain a further actuarial calculation as the Plaintiff’s
arithmetical estimates of the proposed contingency deductions, favour the Defendant
in that both calculations yield a net amount of damages still payable to Mr B[...]
which is slightly less than would be calculated actuarially. The Plaintiff is prepared to
waive that slight difference.
[84] Mr B[...]’s physical impa irment as borne out by the expert reports are
uncontroverted. In order for justice and fairness to prevail, it is incumbent on the
court to ensure that contingencies be applied in relation to the proven facts of the
case. Mr B[...] has been identified as a vulnerable adult. Whilst it may appear that he
is doing well now, the future prognosis appears to paint a very different picture. To
reiterate, Dr Richardson opined that Mr B[...] is unlikely to make further progress
career wise and is vulnerable to unemployment.
[85] If regard is had to the current age of Mr B[...], and the risk period of
approximately 33 years, I agree that a higher than normal contingency is to be
applied. However, to my mind, the proposed 50% alternatively 40% contingency
being applied to the post-morbid uninjured career path, is excessive, if regard is had
44 Radebe v The Road Accident Fund (2457/2017) 2020 ZAFSHC (unreported) at para 24 -26.
to benchmarks set. Even the proposed midway proposition, in my opinion, is not in
keeping with the normal contingencies. Therefore, considering the proven admissible
evidence, I am of the view, in the exercise of my judicial discretion that a 35% post
morbid contingency deduction be applied.
Appointment of a curator bonis
[86] The Plaintiff instituted a claim in respect of the appointment of a curator
bonis to Mr B[...], alternatively for the creation of a trust to administer the proceeds of
the claim on behalf of Mr B[...]. Pursuant to the curatorship order granted on 11
September 2019, the Plaintiff claims costs, fees and expenses in this action. In the
alternative, should a trust be established, the Plaintiff claims payment of the
reasonable costs, fees and expenses, to be determined by the court, in relation to
the creation and administration of a suitable trust to administer the net proceeds of
the awards made.
[87] In my view it will be appropriate that the consideration for the appointment of
the curator bonis alternatively t he creation of a trust be dealt with in a separate
application as proposed by the Plaintiff. It will be prudent for the Plaintiff in his
capacity as the curator ad litem to file his report to the court prior to such application.
The parties are otherwise ad idem with the remaining issues as per the attached
draft order, save for the scale of costs.
[88] In the circumstances I deem it appropriate to adjourn the matter for the
representatives to obtain a further actuarial calculation. The second phase of the
judgment in which the court will ultimately determine the quantum of the balance of
Mr B[...]’s claim for his loss of earnings/earning capacity will thereafter be handed
down.
Costs
[89] It is trite that costs ordinarily follow the result. Rule 67A(3) which came into
effect on 12 April 2024, requires that part y-and-party costs in the High Court be
awarded on Scale A, B or C, respectively. This amendment applies prospectively in
relation to work done on a matter after 12 April 2024.
[90] Rule 67A addressed itself only to awards of costs as between party -and-
party with the purpose to exercise control over the rate at which Counsel’s fees can
be recovered under such an award. Advocate Crowe for the Plaintiff contended that
the issues were re asonably complicated having regard to the amount of expert
evidence as well as the Rule 38(2) evidence, thereby warranting Counsel’s fees on
Scale C. Ms Thomas, contended that Scale B would be appropriate as the matter
was not complex and essentially only turned on the contingencies to be applied.
[91] Both parties are ad idem that interest will only accrue from the 181 st day on
amounts not paid timeously. I do however, deem it appropriate to make a
pronouncement on costs when final judgment is delivered upon r eceipt of the
updated actuarial report.
Order
[92] In the result, the following order is made:
1. The matter is adjourned until 26 November 2024.
2. The representatives are to obtain a further actuarial calculation based on a
35% contingency deduction being applied to the post-morbid uninjured
career path;
3. Costs are to stand over for later determination.
____________________________________
ANDREWS, AJ
Acting Judge of the High Court, Western Cape Division
Appearances
For the Plaintiff: Adv Mike Crowe SC
Instructed by: Mr J Cohen of
Jonathan Cohen and Associates
For the Respondent: Ms Claireese Thomas
Instructed By: State Attorney
Date of Hearing: 4 September 2024 and 29 October 2024
Date of Judgement: 5 November 2024
NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.