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compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(Gauteng Division , Pretoria )
Case no : 54415/2018
Heard on: 10 February 2025
Judgment handed down: 11 April 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
Date: 11 April 2025
Signature
In the matter between
IZAK JAN PETRUS BRITS Plaintiff
And
ROAD ACCIDENT FUND Defendant
_________________________________ ___________________ ______ ____ ________
JUDGMENT
STRIJDOM , J
1. This is a claim for compensation due to a motor vehicle accident that
occurred on 2 4 June 2017 between a motor vehicle bearing registration
letters and numbers O[...] there and then driven by the insured driver and a
motorcycle with registration numbers and let ters D[...] , driven by the Plaintiff.
MERITS
2. In this matter which was unopposed I gave an ex-tempore judgment on 10
February 2025 in respect of merits and found that the respondent must be
held 100% liable for any proven damages by the plaintiff. The finding on
liability was based on the following facts presented by the Plaintiff.
2.1 On 24 June 2017 at 20 :20 the plaintiff was travelling from work to his
primary residence, driving a motorcycle;
2.2 As the plaintiff was travelling straight, a Toyota Hilux with registration D[...]
made a u-turn in front of the plaintiff without any indication and collided
with the motorcycle on its right hand side;
2.3 The plaintiff attempted to avoid the accident but was unable to do so. The
plaintiff sustained injuries as a result of the accident.
QUANTUM
3. The Plaintiff appointed the following experts:
3.1 Dr JP Marin (RAF4);
3.2 Dr JP Marin (Orthopaedic surgeon);
3.3 Dr S Van Heerden (Plastic and reconstructive surgeon);
3.4 V Samouri (Clinical Psychologist);
3.5 F Steyn (Occupational therapist);
3.6 Baige & Burger (Industrial psychologist);
3.7 J Sauer (Actuary);
4. The plaintiff sustained the followi ng injuries:
4.1 Fractured ba se of the right first carpometacarpal.
4.2 Right tibia and fibula fracture.
5. The following documents were discovered in respect of quantum by the
plaintiff:
5.1 Proof of income1;
5.2 Proof in income - 20242;
5.3 Hospital records3;
5.4 Past medical expenses -vouchers4.
PAST MEDICAL EXPENSES
6. With reference to the report of Dr PJ Viviers (specialist physician) dated 17
January 2025 the following was noted:5
6.1 The Plaintiff received on -scene treatment and was transported by private
ambulance service to Mediclinic Nelspruit Hospital where he was
assessed, treated and admitted.
6.2 According to c linical records submitted, there were no medical co -
morbidities or surgical history of relevance reported.6
6.3 The vouchers to the total amount of R218 315,39 were provided to Dr PJ
Viviers .
1 Caselines: 007 -26 to 007 -33
2 Caselines: 007 -34 to 007 -44
3 Caselines: 007 -45 to 007 -121
4 Caselines: 007 -324 to 007 -355
5 Caselines: 009 -234
6 Caselines: 007 -359
6.4 Based on the clinical and hospital notes, the plaintiff received optimal
emergency evaluation and care from the period of presentation to the
Mediclinic Nelspruit, and through his subsequent surgical inter vention and
post-operative care.
6.5 His injuries neces sitated emergency evaluation and treatment, followed by
admission to a standard general ward and ensuing surgical inter vention.
Surgery was performed timeously and adequately, with due regard to the
prevention of complications as well as appropriate post -operative care.
He received early and sufficient physical rehabilitation, to expedite return
to mobility and reduced length of hospital stay, further reducing
complication risk.
6.6 There is a nexus between the accident, injuries sustained, and the
managemen t received.
7. Dr PJ Viviers concluded that “after viewing the vouchers and statement of
account provided for perusal, I have no doubt that the costs of his treatment
were indicated, valid, and in ac cordance with a reasonable standard of care”.7
8. It was submitted by the plaintiff that an amount of R168 673,16 should be
awarded and paid to the Momentum Medical Aid and an amount of R49 642-
23 should be paid to the plaintiff.
FUTURE MEDICAL EXPENSES
9. The respective experts made recommendations in re spect of future medical
expenses. In my view, the future medical expenses should be dealt with by
way of an undertaking in terms of section 17 (4)(a) of the Road Accident Fund
Act.
7 Caselines: 007 -371
EXPERT FINDINGS
10. Dr Martin’s clinical findings indicate that the plaintiff sustained the following
injuries:
10.1 Right hand fracture;
10.2 Right tibia and fibula fracture.
11. It is the expert’s view that the right-hand injury had a profound impact on the
plaintiff’s productivity and working ability and will continue to do so in future.
The accident and the accompanying right ha nd injury have resulted in the
plaintiff suffering some deficits. Even with successful treatment, the plaintiff
will always have a deficit. The plaintiff’s working abilities have been
negatively affected by the accident. The plaintiff should not do physical labour
after the plaintiff’s trapezium is exc ised; it will be difficult for him to perform
the duties expected of a diesel mechanic.
12. The expert concluded that if accommodated in a sedentary work environment,
the plaintiff will be able to work to the normal retirement age of 65. I f not
accommodated , the plaintiff will be able to work to the retirement age of 55
years. Provision should therefore be made for 10 years of early retirement.8
13. With reference to the report by F Steyn (Occupational therapist) dated 25
March 2021 , the following extracts are referred to:
RESIDUAL WORK CAPACITY :
13.1 The claimant presented with challenges mainly relating to his right
ankle, right hand and right wrist. He presented with muscle wasting in
8 Caselines: 009 -68
his right thigh, confirming altered functional u sage in his right leg .
Muscle strength was slightly decreased in the muscle surrounding his
right knee and an kle and wrist. He reported pain in his right an kle with
dorsiflexion and pain in his right wrist with extension and radial and
ulna deviation. His right-hand grip strength was 51,32% below the
acceptable range of his age and gender , whilst his left uninjured hand
was 17,72% above the norm.9
13.2 When consider ing his overall functioning residual capacity, the
claimant is ideally suited for sedentary, light and medium work. His
ability to engage in dynamic strength equates to heavy physical work,
while positional tolerance and mobility equated to medium work.
13.3 His ability to engage in si tting, standing, stooping, kneeling, stair
climbing, walking and repetitive trunk rotation was limited to fre quently,
thus not more than 2/3 of his working day. This was however, since
he maximally extended himself.
13.4 His pre -accident and current work as a diesel mechanic is classified as
very heavy work considering the pathology in his right CMC joint, it
can be concluded that he remains perm anently unsuited for his pre -
accident wo rk.
13.5 It should be noted that the fact that he requires an assistant will place
him in a vulnerable position as he is unable to compete with the pain -
free individuals of the same age and educational level. As the
pathology progresses and especially when he requires an excision
arthroplasty of his right trapezium , he will struggle increasingly more
with fin e motor coordination as well as working in confined spaces,
which are often required form a mechanic. He will also struggle to
engage in tasks requiring grip strength and dexterity or tasks requiring
abnormal hand movements with working in small spaces.
9 Caselines: 009 -140
13.6 Furthermore – in order to preserve his right wrist and thumb after an
excision of the trapezium, handling even light loads remain
contraindicated. In order to preserve the adjacent join ts he should
refrain from placing undue strain on his right wrist and h and which
would include limiting frequent lifting.
13.7 Thus, early retirement is foreseen, as he will not be able to cope with
the job requirements of being a diesel mechanic.
13.8 Note is taken that the claimant has mostly worked as a mechanic as
he is no longer suited for medium and heavy work his career options
have been narrowed considerably. If for any reason he loses his job,
he will struggle to re -enter the open labour market, doing sedentary
and occasional light work due to his work history as well as his level of
education.
13.9 Thus it can be concluded that the accident has had a detrimental
effect on his vocational potential.
13.10 Thus, in conclusion, the claimant will only be able to cope with his
current work with an assistant to do heavy work for a couple of
years.10
14. According to the second addendum report by Baige & Burger (industrial
psychologists) dated 12 November 2024 workplace collateral information was
obtained. The comments can be summarised as follows:
14.1 The claimant is employed as a permanent diesel mechanic;
14.2 His job performance is rated above average, since his is a very
good mechanic;
14.3 He definitely has promotional prospects, there is a strong possibility
that he could be promoted to senior mechanic mana ger. This could
transpire within the two years.
10 Caselines: 009 -141 to 142
14.4 Pre-accident he would most likely have continued earning in
accordance with the salary advice dated 31 December 2022, until
he opted for a better position at Katanga Contracting Services on 20
January 2023. He would have earned in accordance with the offer
of employment letter until he returned to South -Africa in March
2024. Thereafter remuneration would have entailed his actual
current documented earnings . By +- 2026 he could be promoted to
a senior mechanic/manager and earn +- R110 000 00 per month .
He would likely continue earning at this rate with straight line
increases up to the age of 45, followed by inflationary adjustments
up to retirement age .11
14.5 It appears that the claimant’s likely pre - and post -morbid earnings
level remain comparable for n ow.
14.6 He is now 30 years of age and has only been employed in positions
that were heavy in nature and required bilateral dexterity. His
relegation to work of sedentary and light nature, need for workplace
assistance and permanent unsuitability to his employment as a
mechanic has resulted in a severely compromised work capacity as
well as productivity. Due to the accident -related sequelae, he now
has a restricted scope of employment in the open labour market.
Also, his competitiveness in the open labour market has been
drastically reduced.
14.7 Having carefully considered all the relevant circumstances of this
matter as noted in the reports, it can be reasonab ly inferred that the
claimant is a unequal competitor in the open labour marke t. He will
be at a huge disa dvantage when competing for job s with his
uninjured counterparts should he find himself unemployed. 12
14.8 It seems prudent to apply a higher post -accident contingency
deduction to address these vulnerabilities as discussed
11 Caselines: 009 -224
12 Caselines: 009 -212
15. It is evident that the plaintiff has sustained a capacity loss instead of a direct
loss as determined by the orthopaedic surgeon.
16. The applicable p rinciples in determining wh ether a plaintiff has suffered
patrimonial loss was enunciated in Rudman v Road Accident Fund 13as
follows:
“In my opinion, the Learned Judge in the Court a quo has not misdirected
himself in his understanding of these authorities or in his application for the
law to the facts. His judgment correctly emphasises that where a person’s
earning capacity has been compromised, ‘ that incapacity constitutes a loss’, if
such a loss diminishes their estate and ‘he is entitled to be compensated to
the extent that his patrimony has been diminished.”
17. In determining the percentage contingency deduction, the court will have to
look into the future and therefore into the prove rbial “crystal ball”. However, it
is to a large extent a valued judgment that the court must make in regard to
the relevant evidential facts before it as well as the probabilities of the ca se
which play an important role.
18. The percentages of the contingency deduction in the different cases vary to a
large extent. It was submitted by the plaintiff that the norm with regard to pre -
accident contingency deductions are between 10% and 20%.
19. As far as the contingency deduction in respect of the plaintiff’s post -accident
income is concerned, the court will usually make some allowance in the
computation of damages for the fact that the plaintiff’s capacity has been
affected and his position in the labour market is less secure than it was.
13 2003 (2) SA 234 (SCA)
20. The plaintiff’s industrial psycholog ist is of the opinion that a higher post -
morbid contingency th an the pre-morbid contingency should be applied.
21. Koch, in The Quantum Yearbook 2022 at 12.1 said: “ General Contingencies
cover a wide range of considerations which may vary from case to case and
may include: taxation, early death, saved travel costs, loss of employment,
promotion prospects, divorce etc. There are no fixed rules as regard general
contin gencies.”
22. In this matter the plaintiff worked as a diesel mechanic prior to the accident.
Post accident he is still employed as a diesel mechanic. The plaintiff works
for his cousin who employs two general assistants. The plaintiff depends
heavily on his assistant to do all the heavier tasks and lifting. He is not able
to perform the normal duties of a diesel mechanic on his own. His
employment can be described as sympathetic employment.
23. It is trite that loss of earning capacity can be claimed in i nstances where a
plaintiff is still employed out of sympathy and being paid his former salary
although he can no longer perform at his former level.
24. It was submitted by the plaintiff that the court must apply a 30% contingency
differential 15/45. I am of the view that in the circumstances of this case a
35% contingency will be fair. Such a contingency takes into account that the
plaintiff is still employed and may remain in that position and also allows for
the possibility that he may be rendered unem ployable if he should lose his
job. The result would be a 15% pre-morbid contingency and a 35% post -
morbid contingency. A differential of 20% contingency.
25. As per the plaintiff’s actuarial calculation by Johan Sauer (actuary) dated 6
February 2025 (20% contingency differential 15/35):
25.1 Past loss:
- Had the accident not occurred R4 595 422,00
- Less 5% contingency deduction R4 365 651,00
- Now the accident had happened R4 558 388,00
- Less 5% contingency deduction R4 330 469,00
Total past loss: R35 182,00
25.2 Future loss:
- Had the accident not occurred R22 655 470,00
- Less 15% contingency deduction R19 257 149,00
- Now the accident had happened R18 109 190,00
- Less 3 5% contingency deduction R7 486 176,00
Total future loss: R7 521 358,00
Total loss of earnings after RAF cap R6 328 204
26. In the result, the draft order marked X is made an order of Court.
_________________________________________
JJ STRIJDOM
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Appearances:
For the plaintiff : Adv C Nell
Instructed by: Corne Nell Inc Attorneys
For the defendant : No appearance
Instructed by: The State Attorney