SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 45151/2022
In the matter between:
In the matter between:
XOLANI MOKOENA Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
JUDGMENT
NOKO J
Introduction (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISE: NO
SIGNATURE
DATE: 13 February 2025.
2
[1] Mr Xolani Mokoena (“the plaintiff ”), instituted claim against the Road
Accident Fund (“the defendant ”) in terms of the Road Accident Fund Act
(“RAF”).1 The claim is predicated on the injuries sustained pursuant to a motor
vehicle collision which occurred on 12 October 2019 in Witbank.
[2] The RAF has appointed the Office of the State Attorneys (“State Attorney ”)
to defend the action. The S tate Attorney delivered the plea and raised three
special pleas . The defendant abandoned the special pleas at the beginning of the
trial.
Background
[3] The following background facts are common to both parties. The plaintiff
was a passenger in the motor vehicle (“ the insured vehicle”) driven by a driver
(“insured driver” ) whose details are unknown to the plaintiff. The collision
occurred at an intersection between Christiaan De Wet Street and Old Middelburg Road, Extension 10, Witbank. The plaintiff avers that the sole cause
of the collision was the negligent driving of the insured vehicle by the insured
driver. The defendant has conceded that the insured driver was negligent and as
such liability is not being disputed.
[4] The plaintiff suffered the following injuries : head injury, C2 Pedicle Spinal
Fract ure, distal displaced left forearm (radius) fracture, open right shaft femur
fracture, displaced fracture o f the right distal radius , bilateral (left and right) feet
fractures, extensive muscle damage, abrasions on the face and abdomen. He was admitted to Witbank Provincial Hospital and subsequently transferred to Life Cosmos Hospital and then, to Milpark Hospital.
[5] The following procedures and treatment were applied to the plaintiff:
tracheostomy; open reductions and internal fixations to the left distal radius, left
1 Act 56 of 1996 as amended.
3
and right foot; he received a hard neck brace and immobilisation of the left arm,
both feet and reconstruction of the lateral ligament of the left knee.
[6] The plaintiff was discharged on 18 November 2019. He subsequently
underwent open reduction an d internal fixation of the right ilium and a
reconstruction of the lateral collateral ligament of the left knee on 27 November 2019.
[7] The plaintiff avers that as a result of the said injuries and treatment he
experienced frequent headache; intermittent neck pai n and stiffness; pain and
suffering; lost amenities of l ife. He suffered past and future loss of earning and
earning capacity . He incurred past , future hospital and medical expenses . He
suffered long term mental or severe long- term behavioural disturbance or
disorder.
[8] The plaintiff was employed at the time of the collision by S32 Khatala
Colliery as a business administrator and data capturer. He returned to same job
after he convalesced which was a period of five months after the collision.
However, he was retrenched as his position became redundant when the S32
Khatala Colliery was taken over by another company. He was earning R9 266.00
per month. He then sought another employment and was employed as a belt operator at R15 152.63 per month.
[9] Plaintiff lodged a claim in terms of the RAF Act for the total sum of R
9,686,223.87 made up of the following:
9.1 R 836 223.87 for past medical and hospital expenses ;
9.2 R 150 000,00 for past loss of earnings ;
9.3 R6 500 000.00 for future loss of earnings and earning
capacity ;
9.4 R2 200 000.00 for general damages ; and
9.5 Undertaking in terms of section 17(4)(a) for the future
medical expenses.
4
[10] Plaintiff appointed experts who compiled reports which were served on the
defendant and filed with the Court . Thos e experts are, Dr M De Graad
(Orthopaedic Surgeon), Dr L A Fine (Psychiatrist), Mrs C Joyce (Clinical
Psychologist), Dr TC Bingle (Neurosurgeon), Ms M Snyman (Occupational therapist), Mr D De Vlamingh (Industrial Psychologist) and Mr G Whittaker (Actuary).
[11] The defendant failed to settle the claim and plaintiff then issued summons
which w as served on 14 September 2021. The defendant entered appearance to
defend and delivered its s pecial and plea on 8 May 2022. As set out in paragraph
2 above, the special pleas were abandoned at the beginning of the hearing of the
trial.
[12] The experts referred to above deposed to affidavits confirm ing the
contents of their medico- legal report s. The plaintiff also brought an application in
terms of Rule 38 of the Uniform Rules of Court for the report to be accepted by
the Court .
Merits
[13] The defendant counsel conceded 100% liability for the claim and to this
end the trial only proceeded on quantum. The defence counsel stated that the
defendant will not be calling any witness to testify but will challenge the evidence
tendered by the experts called to testify at the instance of the plaintiff.
Evidence by the Plaintiff’s experts .
Industrial psychologists (IP), Mr D De Vlamingh .
[14] Mr D De Vlamingh, qualified as an industrial psychologist in 1980 and has
been preparing medi co-legal reports for a period of 12 years. He has lectured
industrial psychology course over a period of time for approximately 300
students.
5
[15] He testified that the plaintiff conveyed to him that he had the intention, as
at the time of the collision , to become an artisan. The requirement s for one to be
admitted for the a pprenticeship was grade 9. Since the plaintiff had grade 10, he
would have qualified for the appointment . In view of the shortage of the artisans
in South Africa the prospect s of being employed were very high. The plaintiff has
further informed him that he had already conveyed to his employer that once a
vacancy become available, he would apply to be an apprentice.
[16] The plaintiff was studying electrical engineering and has passed N3. He
has completed his National certificate in business administration, level 3. He also
completed business administration NQF Level 3 in 2019 before he was involved in the motor vehicle accident.
[17] Once employed as a belt controller he was earning R 15 152.63 per month
and his role being graded at a Paterson level B3 with a total salary of R32 800.30
placing him between the median and upper quartile of Paterson B4 level.
[18] The IP further reported that due to the injuries sustained he would be able
to ret ain his post until the age of 35 when surgery is required and would
thereafter have to secure a sedentary employment with the basic salary of R15 833 per month being at a Paterson B1 level and reach Paterson B3 (basi c
salary ) of R20 083 at 45 with attendant annual increases until the age of 45.
[19] The counsel for the plaintiff submitted that in view of the aforegoing the
postulations as set out in the report were therefore more realistic. He was employed as at the time of accident and had to continue therewith and could not
realise his dream of become an artisan due to cognitive limitations which resulted from the accident.
[20] With regard to the post morbid scenario, the IP stated that there was no
job offer on the horizon but this was based on the interview conducted with his supervisor, Mr Malatsa who added that the plaintiff was a hard worker and could
have reached higher post.
6
[21] During cross examination, it was restated that the plaintiff was declared
redundant from his previous job and was not terminated due the sequelae of the
accident. Further , that the redundancy occurred 3 years after the accident and
was earning amount of approximately R14 002.34 at that time which was in 2023.
[22] It further transpired during cross examination that , the plaintiff was not
taken through the fitness tests at the time of employment at the mine when he
took his employment as a belt controller . That notwithstanding the plaintiff
informed the IP that he was coping despite the injuries he sustained. The IP
further stated that the normal tests when entering the mining environment is
limited to the blood pressure not physical examinations and this was disputed by
counsel for the defendant who stated that ordinarily mining operations are highly regulated and the version by the IP that tests are peripheral is incorrect .
[23] He had, before the accident , applied for a permanent position
underground as an artisan millwright but upon his recuperation the said post was
no longer available. After the accident he was absorbed by the mine and
become a belt operator out of desperation for employment . The nature of the
employment may readily worsen his situation and is likely to considered as a
vulnerable employee due to his psychological challenges.
Ms Madri Snyman, Occupational therapist (OT)
[24] The plaintiff called the OT Ms Madri Snyman , Occup ational Therapist . Ms
Snyman has a Diploma in Health and V ocational Therapy obtained 2002.
[25] The OT testified that t he plaintiff would have been able to do much of
office work including data capt uring, typing and filing. He has applied for a
permanent position underground as an artisan millwright which was advertised but regrettably on his recuperation the said post was no longer available. This
application was made before the accident. After the accident he was absorbed into mining and become a belt operator and this was as a result of desperation.
7
The nature of his current employment would readily worsen his situation. He is
therefore likely to be considered as a vulnerable employee due to the sequelae
and his psychological challenges.
[26] The OT further stated that despite the fact that the belt operat or’s duty
being heavy it appears that the plaintiff who is desperate for money successfully managed to hide the pain he was experiencing.
[27] She testified that indeed the work in the mining industry is physically
demanding and plaintiff as an artisan would be required to do some form of
physical work which may also demand mobility. Due to his compromised mental
strength/head injuries his endurance is lessened. The assessments and results
for physical assessment could not be obtained as it was confidential and she
could not force to obtain them from the employer as it would have compromised the plaintiff’s position.
[28] During cross- examination she stated that for the assessment of the pre -
accident scenario he could not have access to the employer but is aware that the
job was sedentary . In addition, the employer did not make available information
on his physical strength . Counsel for the defendant stated that ordinarily artisan
work fall under heavy loaded and not light medium . In reto rt, the witness stated
that there are light aspects thereof and become heavy when there is a
requirement to climb up.
[29] When confronted by the counsel that the report
2 states that the plaintiff is
cognitively intact, she replied that this is the case on appearance and the end
result of a screening test which is very basic assessment tool elicited cognitive
impairment . He was forgetful and was once warned of forgetting instructions.
[30] Counsel for the defence stated further that the plaintiff did not qualify to
undertake studies relating to artisanship which requires NQF level which he did
2 CL 007-110 para 262.
8
not possess. Further , that the reasons which were outlined for failing to progress
was because of Covid 19 and not linked to the accident as the report stated. The
response was that th is is what was stated in the initial report and in any event her
interviews which was done via telephone was limited to functional ability.
Dr M Graad, an Orthopaedic Surgeon ( OS)
[31] Dr Graad testifies that he has M B.CHB, M . Med. and Certificate in
Medicine and Law. He testified that due to the nature of the injuries plaintiff would
be unable to carry out heavy weight and lifting jobs. Due to his mental faculties being impaired he may not be able to carry out work which requires memorisation. He re -affirmed that due to the stiffness he would never recover
and again that he took employment as a belt operator due to his desperation and
having probably hidden his injuries to the employer . Ordinarily , he should not
have lasted this long as a belt operator due to the nature of the injuries.
Clinical Psychologist (CP), Ms C Joyce .
[32] The CP testified via teams as she was in the USA . She testified that she
has a Master ’s Degree in Psychology and has been practising for more 20 years .
She testified that in respect of the pre- morbid position, the plaintiff had no
injuries, not smoking, not on drugs and finished high school in 2013, NQF level 3.
He had an average cognitive ability level and was goal driven.
[33] Based on the test results and the history , the CP opined that the plaintiff
has sustained a moderate brain injury with diffuse axonal damage.
[34] Further , that the plaintiff conveyed that he went back to work after the
recuperating but he started getting t ired easil y. He had both physical and mental
challenges. He became forgetful, moody, reserved, and no longer play ed soccer .
In general , the CP painted a glim picture of how the accident affected the plaintiff
and all these appear to be irrev ersible.
9
[35] The CP stated under cross examination that she has last examined the
plaintiff in 2021 and cannot deny that there could have been improvement.
Further , that she did not have collateral educational history but with the
information (and the certificate) at her disposal she can state that evidence points
to average intellectual abilities. The defence counsel submitted that it may have
been proper that an educational psychologist be appointed and the CP is not
qualified to readily provide an opinion with regard to whether the plaintiff is a
candidate to further his studies or not.
Dr Leon Fine, Psychiatrist .
[36] Dr Fine obtained the following qualifications, MB,CHB, D.P. M, F.F Ps ych,
BA Hon (Psychology and Certificate in Medicine and Law.
[37] His report states that t he plaintiff had no health problems prior to the
accident. He does not smoke or take drugs and is an occasional drinker of alcohol. His social disposition before the accident was good, he played soccer
and enjoyed fishing and swimming with friends.
[38] The expert reported that the plaintiff presents with having sustained a
head injury with significant organic brain injury though no GCS could be found in
the Hospital records and the prognos is is very poor and there is no prospect of
any improvement hence the injury is considered to be permanent . Further ,
though the plaintiff has denied this, the examination revealed he has suffered a
post-traumatic stress disorder.
Neurosurgeon, Dr TC Bingle .
[39] The neurosurgeon on the other hand opined that the plaintiff sustained a
mild traumatic brain injury with no signs of neurophysical deficits but
recommended an MRI scan to exclude focal brain injury. Further , that without the
scan results he would not make any comments regarding the degree of his brain injury. The neurocognitive and psychological sequelae as presented by the
10
plaintiff may imply that there could have been a mild to moderate traumatic brain
injury and to this end, he deferred to the findings of the clinical psychologist.
Submissions by the parties .
[40] The plaintiff counsel submitted that the experts have demonstrated that
the plaintiff had commenced his studies and was already on N3 in his
engineering studies. These studies could not be completed as the plaintiff was
cognitively impaired. He, at all times , wished to be an artisan and permanently
interrupted by the accident. The counsel referred summarily to evidence as presented by the experts set out above.
[41] Counsel for the plaintiff submitted further that usually the apprentices start
at level 1 (Paterson level A3) and progressed to level 4 (Paterson B2) before qualifying and earnings will be adjusted in accordance with their qualifications. The counsel further demonstrated that with this path he would have qualified as an artisan after the apprenticeship and ultimately move to median Paterson C1
level and to reach Paterson C2 in ten years’ time (R47 167 per month). He would
have also received his annual increases until his retirement at 65.
[42] The counsel for the plaintiff further submitted that with regard to
contingencies normal occurrence of 0.5% of the remaining life should apply and
the Court should follow the recommendation of the Actuar y.
[43] Further , that the court should further award costs for three days including
counsel’s fees on scale B and that there is a valid contingency fees agreement
entered into between the attorneys and the plaintiff. Reservation fees should also
be allowed in respect of the expert witnesses who provided testimony to the Court.
[44] The counsel for the plaintiff made reference to previous awards as a guide
and recommended that the fair and reasonable award for the general damages should be R2 200 000.00.
11
[45] With regard to the contingencies relative to the loss of earning and earning
capacity, 5% and 19.5% should be applied to past and future loss , respectively ,
in respect of uni njured loss . Whereas 5% and 39.9% should apply to past and
future loss in respect of injured earnings. The total suggested figure is
R6 070 037.00 reckoned as follows:
Past loss of income uninjured R1 204 553.00
Less contingency of 5% R 60 228.00
TOTAL R1 144 325.00
Value of the income injured R1 057 246.00
Less 5% contingency R 52 862.00
Total R1 004 384.00
Net Past loss R 13 9 941. 00
Future loss of income uninjured R11 903 772.00
Less contingency deduction of 19,5% R 2 321 235.00
TOTAL R 9 582 537.00
Value of injured income R 6 037 091.00
Less contingency of 39.5% R 2 384 651.00
TOTAL R 3 652 440.00
Net Future loss R5 930 097.00
Total Future Loss R6 070 037.00
[46] The defence disputed all heads of damages claimed by t he plaintiff. In
brief, the defence contends that there is no evidence supporting the claim that
the plaintiff could have become an artisan. Further , that even if it is found that he
could have become one, the nature of the injuries suffered would not have made
it impossible for the plaintiff to work as an artisan.
12
[47] The defen dant further disputed that there is sufficient evidence to
conclude in favour of the plaintiff that he really had the intention to become an
artisan. This can be inferred from the fact that though he was able to further his
studies such a plan fell through. The evidence demonstrated that he has in fact
continued his employment as a data capturer after the accident and this can only
mean that the accident has not negatively affected him.
[48] The excuse by the clinical psychologist that she could not obtain further
information from the current employer is baseless , as POPI Act acknowledges
that in certain instances personal information about a third party may be obtained directly fro m whoms oever has that information. In this regard, the counsel made
reference to sections 14 and 16 of the POPI Act
3 which relates to keeping the
personal information safe and further that a party is required to keep information
which is accurate an d not misleading.
[49] In addition, the primary expert Neurosurgeon stated that the plaintiff has a
mild traumatic injury and the report states that an MRI scan should have been done to exclude possibility of a serious traumatic brain injury. Without the MRI
Scan , the evidence would be found wanting and would not find a correct
conclusion. Therefore, she argued further, to the extent that the clinical
psychologist referred to neurocognitive and psychological sequelae same is
unsustainable as the N eurosurgeon could have made a conclusion of the severity
of the traumatic injury only after the MRI scan.
[50] The evidence of the Occupational Therapist should also be discarded
since the report was stale. F urther , that she stated that she is in a position to
provide evidence which may be required from an educational psychologist. The
aspect of her report which referred to the moderate brain injuries should also be
ignored since the said diagnosis could be done by the N eurosurgeon.
3 Act 4 of 2013.
13
[51] In addition, t he counsel for the defendant argued, no conclusive evidence
was presented to prove that that the plaintiff would have been an artisan and as
such it follows that the calculation postulated on that basis would be incorrect.
[52] The evidence presented by the Orthopaedic Surgeon was that the plaintiff
had the intention to work underground as a mill wright and wanted to become an
artisan. He was offered the position to start work underground but rejected the
offer due to head injuries. The report was not supported by any collateral
regarding his fitness as he i s now working underground in the mine. It is stated
that he could do a sedentary light to medium job. It is noted that post morbid he got employed in the mine and there is no collateral on his fitness test , hence
there is no conclusion with regard to his ability to retain and remain working underground. Counsel further found it strange that the experts could argue that
there was no collateral regarding tests undergone especially in the m ining
industry which is highly regulated.
[53] The testimony of the IP Vleming was based on the qualification of the N3
but there was no evidence of offer for a job as an artisan. The plaintiff is currently
at 32 over the Partisan B (2) level.
[54] In assessing the evidence of the clinical psychologist, the defence counsel
submitted that there was no collateral with regard to the allegations that he had passed. Further , that the evidence presented is that he could not complete his
studies due to Covid 19 and not accident related cause. The report should not be
relied on because there has not been any current assessment and it is also
based on contradictory evidence as the primary doctor made reference to mild traumatic injury whereas the clinical psychologist referred to moderate brain
injury with diffusion. The report was also prepared more than three years ago and
has become stale hence cannot be relied upon.
[55] The OT’s testimony confirms that the plaintiff managed to go back to
school and only discontinued due to Covid 2019 and not to the accident . There
was never any further studies done with the plaintiff. In addition, the OT opines
14
that an artisan and belt assistant fall within a medium type of work which was
decreed by the Ortho paedic Surgeon that he will be fit for light to medium type of
work. There was no collateral from the employer to support the Orthopaedic
surgeon that the plaintiff was not fit to work underground. Without the
communication with the employer the O T would not have the basis to make a
determination of the nature and the profile of the underground work and may therefore not make a conclusion that the plaintiff w as unsuited to work
underground. The reasoning that the O T has deferred contact with the employer
to the OT is unsustainable as he needed same to come to a correct conclusion. [56] Counsel for the defendant contended further that t he IP ’s contention that
he could not obtain information from the employer or could not call the employer
as the information was confidential is baseless as POPI Act makes provision to obtain such information.
[57] With regard to the report of the psychiatrist , counsel contended that in
contrast to the Neurosurgeon he stated that the plaintiff suffered an organic brain
damage. He further stated that though the plaintiff did not admit symptoms of
neurocognitive impairment he assumed on the basis that there was extended
period of amnesia. He noted that there was no admission G lasgow Coma Scale
found and in all probabilities an MRI scan would have cleared any of these
assumptions
[58] In retort , the counsel for the plaintiff conten ded that , in addition, that the
defendant should not complain about alleged inconsistencies in relation to
different diagnosis of organic cognitive brain damage and mild to moderate
injuries. There is a Glascow of 20% WPI. He is not suited to underground work. There is no evidence presented by the defendant to gainsay the testimony of the
plaintiff’s expert. Furthermore, t here was no need for the MRI scan.
[59] Notwithstanding that, the counsel for defendant made recommendations of
the amount payable for damages suffered by the plaintiff. The counsel made reference to few comparative awarded damages in previous cases and
15
suggested an amount of R1 000 000.00 as fair and reasonable in respect of
general damages .
[60] Counsel further referred to principles applicable as highlighted in previous
court cases that opinions by experts are not cast in stone and the Court is bestowed with discretion to disregard them. To this end the recommendation of
the report should not be followed blindly. Further , that ordinarily aw ard in relation
to future loss of earnings and earning capacity the exercise is generally within the
realm of conjecture. In view of the reservations and shortcom ings and holes
punched in the reports the counsel opines that , the conclusion that the plaintiff
would have become an artisan is unfounded and should be rejected outrightly.
[61] Notwithstanding the aforegoing, they may have to apply for a higher
contingency as there are various viscidities of life such as level of unemployment ,
age of the plaintiff an d further noting that he was also able to reta in his job which
was sedentary in nature. To this end counsel recommended the following:
Past loss of income uninjured R1 204 553.00
10% R120 455.30
TOTAL R1 084 097.70
Value of the income injured R1 057 246.00
Less 10% contingency R105 724.40
Total R951 521.40
Past loss R 132 576.30
Future loss of income uninjured R11 903 772.00
Less conti ngency deduction of 40% R4 761508.80
TOTAL R 7 142 263.20
Value of injured income R6 037 091.00
Less contingency of 20% R1 207 418.20
TOTAL R4 829 672.80
16
Net Future loss R2 312 590.40
Total Future Loss R2 445 166.70
Costs .
[62] The defendant’s counsel argued that costs to be awarded should be for
two days being, Thursday and Friday , and on a normal cost scale. In retort ,
plaintiff’s counsel contended that the matter was set down for Wednesday and could not proceed as allocation of the judge was awaited, who was only allocated
on Thursday and as such costs should be Wednesday, Thursday, Monday and Tuesday . The plaintiff’s counsel persisted on costs on a punitive scale as the
defence though not having disputed the rule 38 expert affidavit , nevertheless ,
insisted on having to cross examine the expert witnesses. The counsel for the defendant intimated that all expert will be cross examined but , subsequently ,
decided not to test evidence of all of them th rough cross examination.
Legal principles and analysis .
General damages .
[63] The determination of general damages is dependent on a num ber of
variables and as such amount awarded for damages in one case may not necessarily be the same as the determination in another case. It was held in
Sandler
4 that, “The amount to be awarded as compensation can only be
determined by the broadest general considerations and the f igure arrived at must
necessarily be uncertain, depending on t he judge ’s view of what is fair in all the
circumstances of the case.”
[64] Both the plaintiff and d efendant made reference to previous judgment s as
motivation for the amount to awarded as damages.
4 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
17
[65] Notwithstanding that and as was highlighted above previous awards serve
only as guides and to this end it was stated in Dikeni5 that, “…although these
cases have been of assistance, it is trite law that each case must be adjudicated
on its own merits and no one case is factually the same as another… previous awards only offer guidance in the assessment of general damages.”
[66] I had regard to the nature of the injuries and the sequelae as set out in
detail in the reports. I also has regard to the previous comparative awards made
and considered the recommendations put forward by both parties. I conclude that
the general damages should be awarded in the sum of R1 200 000.00.
Past hospital expenses .
[67] The past medical expenses have been clearly set out and collaterals also
attached to the papers and no evidence or persuasive challenge has been
mounted by the counsel acting for the defendant as to the cogency or authenticity
of the evidence presented. To this end I order that the amount claimed as
supported by the collateral attached in the sum of R 836 223.87 should be paid by
the defendant.
Loss of earning capacity .
[68] It is trite that earning capacity may constitute an asset in a person’s
patrimonial estate. If loss of earnings is proven, the loss may be compensated if it
is quantifiable as a dominium in the value of the estate.
6 The Court would
generally get a cue from an Actuary whose report would allude to contingencies.
That being said the a ctuarial recommendations are not edged in stone and the
5 Dikeni v Road Accident Fund 2002 C&B (Vol 5) at B4 171. See also Protea Assurance Co Ltd v
Lamb 1971(1) SA 530 AD at 535 H – 536 A, where it is stated that “Comparable cases, when
available should rather be used to afford some guidance, in a general way , towards assisting the
Court in arriving at an award which is not substantially out of general accord with previous awards
in broadly similar cases, regard being had to all the factors which are considered to be relevant in
the assessment of general damages .”
6 Prinsloo v Road Accident Fund 2009 5 SA 406 (SE) at 409C -410A.
18
Court is at large to exercise its discretion and may deviate from suggested
calculations.
[69] The contingencies may be higher where evidence is clear that the
chances of re- employment will mainly depend on the sympathetic employment . It
was held in Krohn7 where a higher contingency was applied that
“There is little doubt that having regard to the sequelae of his injuries fully
canvassed by the experts, the plaintiff is at risk of losing his current
position and the prospects of him obtaining another position are indeed
very slim. The plaintiff is on the proverbial “knife’s edge”. He can be
dismissed from his job anytime. There is no other option in my mind other
than to apply a 50% post -morbid contingency deduction. By applying the
50% contingency deduction, the plaintiff is regarded as having a 50% chance to sustain his current employment , alternatively to obtain
alternative employment. This is conservative approach if one has regard to the plaintiff’s condition.”
[70] The Orthopaedic Surgeon was at pain to explain the effect on the plaintiff
and whether the fact that he is now employed under ground handling heavy duty
had been medically examined and conclude that he is not qualified to carry out
the work currently been carried out. It is understood that the plaintiff lied his way through as he was desperate for employment. The fact that he is executing the
duty which has been construed by the experts as heavy means that the accident
may have not negatively affected his position. Absent persuasive evidence
regarding the profile of the work currently undertaken by the plaintiff , the Court is
being derailed from making a proper assessment regarding the allegation that his
endurance has lessened.
[71] However, it is clear that the plaintiff had no pre- existing conditions, that he
is currently employed and that his post -accident income exceeds his pre- accident
income. The locus classicus regarding loss of earnings is Southern Insurance
7 Krohn v Road Accident Fund (1402/2013) [2015] ZAGPP HC 697 at [24] and [27] .
19
Association Ltd v Bailey NO ,8 where the C ourt acknowledged that 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. It was held that the C ourt can only make an
estimate which is often a very rough one of the present value of the loss and in
this exercise, one has to decide to make an award which is just and equitable.
One need to be guided by , but not tied down by , inexorable actuarial
calculations.9
[72] It is clear that the plaintiff’s career prospects and earning potential had
been detrimentally affected by the accident based on the Industrial Psychologist’s recommendation who indicated that the plaintiff’s career prospects and earning capacity had been negatively affected as a result of the accident and its sequelae. In the premises , one would con sider applying a higher -than- normal
post-morbid contingency deduction. Having taken into account the fact that the
recommended figures of the actuary, together with the suggested amount by the parties , shortcomings in the reports by the experts and importantly , that the
amounts for loss of earnings is general ly in the realm of conjecture. I determine
that the fair and reasonable for the loss of earning capacity to be R4 548 472.25.
Past loss of income uninjured R1 204 553.00
Less contingency of 5% R60 228.00
TOTAL R1 144 325.00
Value of the income injured R1 057 246.00
Less 5% contingency R 52 862.00
Total R1 004 384.00
Net Past loss R 139 941.00
Future loss of income uninjured R11 903 772.00
8 1984 (1) SA 98 (A) at 99A -C.
9 Legal Insurance Company v Botes 1963 (1) SA 608 (A) at 614 F-G.
20
Less contingency deduction of 30% R3 571 131.60
TOTAL R8 332 640.40
Value of injured income R6 037 091.00
Less contingency of 35% R2 112 981.85
TOTAL R3 924 109.15
Net Future loss R4 408 531.25
Total Future Loss R4 548 472.25
Costs .
[73] It is settled jurisprudence that the costs should follow the results. No
attempt by either of the parties were made to persuade me to upset this well -
trodden path. The trial was set down for Wednesday and the judge was made
available later in the day. The parties agreed that the trial should start on Thursday. The trial proceeded until Tuesday and therefore the costs of thos e
days should be allowed. There was nothing out of the ordinary with this case as such the costs in scale B shall be allowed including the costs of the advocate on
brief.
Order .
[74] In the premises I make the following order:
1. The defendant shall pay the plaintiff the sum of R1 200 000.00
(One Million, Two Hundred Thousand Rands) in respect of g eneral
damages on or before 180 ( One Hundred and E ighty Days) from the date
of the C ourt order.
2. The defendant shall pay the plaintiff the sum of R4 548 472.25
(Four Million , Five Hundred and Forty Eight Thousand, Four Hundred and
Seventy Two Rands and Twenty Five Cents) in respect of loss of earnings
on or before 180 days from the date of the C ourt order.
3. The defendant shall pay the pl aintiff the sum of R 836 223.87 (Eight
Hundr ed and Thirty -Six Thousand Two Hundred and Twenty -Three Rands
21
and Thirty -Seven Cents) in respect of past medical and hospital expenses
on or be 1 80 days from the date of the C ourt order.
4. The defendant shall f urnish the plaintiff's with Section 17(4)(a) of
the Road Accident Fund Act undertaking.
5. The defendant would not be liable for interest on the capital amount
should same be paid on or before the expired of 180 days (date of
payment) from date of Court order failing which the defendant will be liable
for interest calculated from 14 days from the date of payment .
6. The defendant shall the plaintiff ’s taxed or agr eed par ty and party
costs on the scale High Court scale up to the date hereof which cost will in
include :
6.1. That reasonable cost of the medico- legal reports, R AF 4
assessment reports and their reasonable preparation and reservation
fees, (if any), addendum reports and any joint reports of the following
experts : Dr M De Graad (Orthopaedic Surgeon), Dr L A Fine (Psychiatrist),
Mrs C Joyce (Clinical Psychologist), Dr TC Bingle (Neurosurgeon), Ms M Snyman (Occupational therapist), Mr D De Vlamingh (Industrial
Psychologist) and Mr G Whittaker (Actuary).
6.2. The cost of senior junior counsel for the trial, which cost will include
attendance of pretrial conferences and drafting of minutes (other than the
plaintiff ’s attorney, if any ) costs of preparation and attendance at judicial
meetings, (if any ), interlocutory Court appearance and all steps in
compliance with any current or applicable C ourt Practise Directives
include inclusive of cost of drafting of heads on S cale A.
6.3. The reasonable cost of instructing attorney and correspondent
attorney at the seat of the C ourt (if applicable) .
6.4. The reasonable costs of a correspondent at any at the seat of court,
which will include travel costs, attendance at court, cost for pre- trial
conferences and formulation of the pre- trial minutes, and cost of actual
attendances to the pre- trial conferences, preparation for and attendance of
judicial meetings, an inter locutory applications, time spent formulating the
proposal where applicable, and all other steps in compliance with any
current and applicable practise directive and all subsequent Court directive
22
issued by the Judge President and/ or Deputy Judge President of the
above Honourable Court.
6.5. The cost occasioned by the plaintiff ’s attorneys, preparation for trial
bundles and time spent uploading all other relevant pleadings and or
notices on the Court digital case line system.
6.6. The reasonable cost incurred in obtaining payment of the capital
and/or taxed costs and/or Section 17 (4)(a) U ndertaking.
7. There is a valid contingency fee agreement concluded between the
parties .
8. Taxation or settlement of bills of cost will additionally be subject to
the following general conditions :
8.1. The plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the defendant ’s attorneys of record and.
8.2. The plaintiff shall allow the defendant 14 calendar days to make
payment of the tax ed costs from the date of the stamped allocator and or
settlement.
8.3. The defendant would not be liable for interest on the party and party
costs except if not paid on/ or before the set agreed date, in which case the
defendant will be liable for interest calculated from the date of stamped
allocatur and or settlement.
9. The interest rate on the outstanding monies due to the pl aintiff will
be calculated as prescribed in Section 1 of the Prescribed Rate of Interest Act 1975, as amended by the Judicial Matters Amendment Act 24 of 201 5,
promulgated on 15 December 2015.
10. Payment of the capital amount and text cost with shall be paid had
been made into the following bank account.
A R[…] A[…]
Account Number: 6[…]
FNB, Clearwater Mall Code 2[…]
M V Noko
Judge of the High Court
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Gauteng High Court, Johannesburg
This judgment was prepared and authored by Judge Noko and is handed down
electronically by circulation to the Parties /their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for
hand- down is deemed to be 13 February 2025.
Date s:
Hearing: 4
th to 10th September 2024
Judgment: 13 February 2025
Appearance:
For the Plaintiff : D Strydom
Instructed by : A Rautenbach Attorneys
For the Defendant: N Moyo
Instructed by : Office of the State Attorneys , Johannesburg