IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
HONONO, ESIMPHIWEYO
and
ROAD ACCIDENT FUND Reportable: YES/NO
Of interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case no: 4436/2020
Plaintiff
[LINK: 4437358] Defendant
Neutral citation: Honono, Ev Road Accident Fund (4436/2020)
Coram: Van Zyl, J
Heard: 14 August 2024
Delivered: 10 January 2025
Summary:
Damages -Motor Vehicle Accident. Loss of Earnings and General Damages.
Payment of Damages Ordered.
ORDER
1. The defendant is liable to pay 100% of the plaintiffs proven or agreed
damages.
2. The defendant shall furnish the plaintiff within 180 (one hundred and
eighty) days of date of this order with an undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act, 56 of 1996, to compensate the
plaintiff for 100% of the costs of future accommodation of the plaintiff in
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a hospital and/or nursing home or the treatment of or rendering of service
to her or the supplying of goods to her arising out of the injuries sustained
by her in the motor vehicle collision which occurm_d on 9 January 2018,
after such costs have been incurred and submission of proof thereof.
3. The defendant is ordered to pay the plaintiff the amount of R900 000.00
as general damages.
4. The defendant is ordered to pay the plaintiff loss of earnings in the
amount yet to be calculated, which calculation is to make provision for
the following contingencies:
4.1 5% in respect of past loss of earnings;
4.2 17% in respect of pre-morbid future loss of earnings; and
4.3 35% in respect of post-morbid future loss of earnings.
5. The plaintiff's attorney of record is ordered to forthwith request the
actuary to prepare an updated actuarial calculatic;m on the basis of the
calculation in respect of the capital value of loss of earnings of the plaintiff
as set out in the actuarial report, but with contingencies as ordered above
and all updated to date of this order.
6. Leave is granted to the parties to approach Van Zyl, Jin chambers once
the aforesaid calculation is received to obtain a further order for the
payment by the defendant to the plaintiff in the amount calculated
accordingly.
7. The defendant shall pay the plaintiff's taxed or agreed party and party
costs, which costs shall include, but not be limited _to, the following:
7.1 The reasonable qualifying fees of the following experts:
7.1.1 Dr SK Mafeelane (Orthopaedic Surgeon);
7 .1.2 Dr AM Lalbahadur (Plastic and Reconstructive Surgeon);
7.1.3 Ms K Gela (Occupational Therapist);
7.1.4 Ms B Pepu (Industrial Psychologist); and
7.1.5 Munro Forensic Actuaries. 3
7 .2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument, to be taxed on scale B.
8. The aforesaid costs are also to include the additional costs for obtaining
the newly calculated and updated report from the actuary as well as any
consequential costs incurred for it to be made an order of court.
JUDGMENT
Van Zyl, J
[1] The plaintiff issued summons against the defendant for payment of damages
which she suffered as a result of a motor vehicle accident which occurred in the
jurisdiction of this court on the N3 road near Warden on 9 January 2018. At the
time the plaintiff was a passenger in a Toyota Quantum vehicle, driven by Mr M
Sifiso, and while overtaking a truck, the accident occurred.
[2] The merits of the action have been settled and the defendant has accepted
100% liability for the damages proven by the plaintiff. The parties have further
settled the aspect of Future Medical Expenses as the defendant has tendered an
undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996.
[3] The remaining issues to be decided are the general damages and the past
and future loss of earnings suffered by the plaintiff. With regard to the last­
mentioned issue, I am also called upon to determine the appropriate contingency
deductions in respect of the plaintiffs loss of earnings. In this regard, Ms Banda, on
behalf of the defendant, indicated at the commencement of the trial that she does
not hold instructions to dispute the calculation of the loss of earnings, but that she
will argue the applicable contingencies to be applied.
[4] The plaintiff is claiming damages in an amount of R7 600 000.00 made up as
follows:
Past and Future Loss of Earnings
General damages
TOTAL R6 600 000.00
R1 000 000.00
R7 600 000.00 4
[5] By agreement between the parties the plaintiff provided the court with reports
of the following experts on behalf of the plaintiff:
1. Dr SK Mafeelane (Orthopaedic Surgeon);
2. Dr AM Lalbahadur (Plastic and Reconstructive Surgeon);
3. Ms K Gela (Occupational Therapist);
4. Ms B Pepu (Industrial Psychologist); and
5. Munro Forensic Actuaries.
[6] The plaintiff gave evidence and also called the plaintiffs industrial psychologist
to testify.
[7] The defendant appointed two experts:
7.1 Ms H Tomu (Industrial Psychologist);
7.2 Ms S Tom (Occupatio[lal The,rapist) .
[8] The defendant, however, did not call its experts to testify, but there are Joint
Minutes which were filed by the occupational therapists and the industrial
psychologists, which were handed in as Exhibits 'A' and 'B' respectively .
Evidence of the plaintiff:
[9] The plaintiff was born on 31 August 1994. She resides in Midrand,
Johannesburg . She is currently unemployed. The plaintiff is originally from Mount
Frere in the Eastern Cape.
[1 O] On 9 January 2018 on the N3 near Warden she was involved in a motor vehicle
accident. At the time she was a passenger in a taxi. After they passed Harrismith ,
there was a truck driving in front of the taxi and the taxi hit the truck at its back on
the corner thereof with the front left corner of the taxi. The plaintiff was seated at
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that very corner on the passenger front seat of the taxi. When the corner of the taxi
collided with the corner of the truck, the plaintiff's arm got stuck between those two
corners. The plaintiff started crying in court whilst explaining what happened. She
further explained that she could not pul! her arm from where it was stuck. The truck
had to be pulled away from the taxi for her arm to be released, although her arm
thereafter still remained stuck on the dashboard of the taxi.
[11] She explained her injuries in court and also the fact that her left index finger
had to be amputated and that she cannot open her left thumb. She showed her
injuries to the court and it is evident that her left arm and hand are severely
disfigured and scarred. She spent four months in hospital.
[12] The plaintiff passed grade 11, after she failed once. She moved to grade 12,
but failed it twice. She obtained the qualification of NQF Level 2 in 2015 and
progressed to NQF Level 3 in 2016 and NQF Level 4 in 2017 in Hospitality. She
obtained her NQF Level 4 qualification at Thekwini TVET College in 2017, although
she had two subjects outstanding which she failed. Later in 2018, after the accident,
she returned to Esayedi TVET College in an attempt to complete the two
outstanding subjects, but she experienced challenges to write since she is left hand
dominant and was therefore not able to finish writing all her exams in the prescribed
time, even though additional time was granted to her.
[13] During the rest of 2018 and 2019 she was unemployed . In 2020 she was
employed by a retirement village in Durban, which employment was in the form of
work integrated learning, which was for a period of 6 months. Her duties were to
assist the other employees in the kitchen to prepare food for the elderly, which
duties were in line with her qualifications. She had to clean the kitchen and also
assist at the pantry. Since she was still learning what should be done, she had to
assist the chef on duty.
[14] Because there were many people for whom they had to prepare food, they
used big pots which the plaintiff was unable to pick up. Some of her other duties
she could also not perform due to her injury and her co-employees had to assist
her.
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[15] Considering her qualification, the cutting of vegetables has to be done in a
specified manner, which she had difficulty doing. Due to the lack of grip of her left
hand she was unable to chop the vegetables. She also experienced difficulty to
operate the appliance which were used to cut meat.
[16] The plaintiff further explained that under the umbrella of a qualification in
Hospitality, one can also be employed as a receptionist at a hotel, be involved in
housekeeping at a hotel, be a runner at a hotel or even a porter. She testified that
due to the deformity of her arm and hand, she will not be able to work at reception
of a hotel or quest house. To be able to work at reception, one has to be presentable
and speak to people, which she feels she is no longer able to do. Furthermore,
although she can write, she cannot write properly. Although waitressing is also an
option, she is unable to carry a tray to serve people.
[17] Due to the injuries she suffered and the deformity of her hand and her arm,
her self-esteem has been broken down. It is a challenge for her to seek and find
employment.
[18] With regard to house chores, she is able to do same, but is not able to pick up
any heavy items. She also finds it difficult to do her laundry. She is presently staying
alone.
[19] Since she finished her training at the retirement village in July 2020, she has
been unemployed. She relocated to Johannesburg in order to find employment, but
has been unsuccessful up to now. She has no source of income. Her mother is a
pensioner and is assisting her financially.
[20] The plaintiff testified that before the accident she wanted to become a
professional chef, but she will not be able to do that anymore.
[21] When asked how the accident has impacted upon herself and her life, she
again cried. She testified that she has become a different person. She knows that
she has to accept her present condition, but she finds it very difficult. She used to
like to do things on her own, now she has to constantly request assistance from
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people. It makes her feel that people may think that she is seeking attention, but
that is not her intention and not her personality type.
(22] Besides liking cooking, before the accident she enjoyed going to the gym and
loved to speak to the youth and help other people. She feels that she cannot do it
anymore, because of the way people are looking at her and at her deformed and
scarred arm and hand. She also feels ashamed about her weight. Although she is
of bigger built, she used to encourage other people of similar built to keep their
weight intact. Now, after the accident, she has picked up a lot of weight and is
wearing clothes of bigger sizes.
[23] During cross-examination the plaintiff again testified that she completed NQF
Level 4 in 2017 and actually obtained her certificate. The two subjects which she
did not pass are just not included in the certificate. She is still allowed to prepare
food with the qualification she has. With her present qualification she cannot
become a chef, but she can become a chef assistant. After obtaining Level 4, one
can study further, for example, to obtain a diploma or at the International School of
Hotels.
(24] When asked whether she has considered studying towards something else,
the plaintiff testified that she has become discouraged. She does not even try
because she loves Hospitality . Prior to the accident she considered Hospitality to
be her future.
[25] When cross-examined about her self-esteem issues and why she does not
seek professional help, she testified that firstly she cannot afford it. Secondly, at the
government hospitals it takes about six to eight months to get an appointment, which
lengthy time periods discouraged her. She further explained that because of her
Xhosa culture, she believes that she has to fix herself and obtain inner peace before
she can in any event consult a psychologist. She actually does not believe in
psychology due to her culture.
[26) When confronted with the certificate of competence she obtained in first aid
and why she does not attempt to obtain employment in that field, she testified that
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because she is not able-bodied, she will not be able to perform CPR and will
therefore not be able to provide proper first aid to a patient.
The report of Dr Maleefane (Orthopaedic Surgeon):
[27] According to the report of D Maleefane, the orthopaedic surgeon, the plaintiff
suffered an amputation of her left index finger and a severe open degloving fracture
of her left humerus. 'Degloving' can be described as follows:
'Degloving occurs when skin and the fat below it, the subcutaneous tissue, are torn
away from the underlying anatomical structures they are normally attached to.'
[28] As a result of the injuries the plaintiff has a non-functional left upper limb. At
the hospital, she received the following treatment:
'1. X-rays;
2. Analgesic and antibiotics;
3. A TT injection;
4. Wound debridement and external fixator left elbow;
5. Left radial heeled replacement;
6. Skin graft;
7. Physiotherapy;
8. Arm sling.'
[29] The orthopaedic surgeon also recorded the following in his report:
'Elbow and forearm
1 . 14 x 11 cm scar on her left arm posterior aspect.
2. 7cm scar on the left forearm volar aspect.
3. 1 o· left elbow fixed flection deformity (FFD).
4. Left elbow flection only 1 o· (normal is 100").
Hand and wrist
1. 10cm L-shaped scar on the left wrist dorsal aspect.
2. 4cm scar on the left wrist dorsal aspect.
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3. Left index finger amputation trans-metacarpal.
4. Complete stiffness metacarpo phalangeal joints (MPJ) of the middle, ring and
pinky finger.
5. No hand grip.'
[30] She has never been pain free since the accident.
[31] With regard to the impact of the injuries, the orthopaedic surgeon noted that
the plaintiff has great difficulty lifting and carrying heavy objects, great difficulty lying
on the affected side and she has poor hand grip. The plaintiff will not return to her
pre-accidental level of activity as a result of the complications she experiences
emanating from her injuries.
[32] With regard to disability and impairment. the plaintiff has the following
permanent impairment:
'1. 10% upper extremity impairment -amputation .
2. 14% upper extremity impairment- multiple fingers motion.
3. 13% upper extremity impairment -radial head arthroplasty.
4. 20% upperextremity impairment -elbow motion.
5. 9% whole person impairment -scars.
Using the combined values, the plaintiff has 36% whole person impairment .'
[33] With regard to future medical treatment, the plaintiff will probably for the rest
of her life need to purchase analgesics, consult an orthopaedic surgeon and
physiotherapists . She will also need surgery for radial head revision.
[34] In respect of her retirement and employability, the orthopaedic surgeon stated
that the plaintiff is unemployed and that in his considered opinion she will never be
able to work. He however deferred to the occupational therapist to comment in
more detail.
Report of Dr AM Lalbahadur (Plastic and Reconstructive Surgeon):
[35] In his report Dr Lalbahadur , the plastic surgeon, described the present
condition of the plaintiff in respect of her left upper extremity as follows:
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'Clinical examination confirmed that she has the following areas of scarring:
1.) A 7 x 5 cm scar on the lateral aspect of the left lower arm.
2.) 3 puncture scars on the anterior aspect of the left arm representing the site of
the insertion of the pins for the external fixator.
3.) A 14 x 11cm scar on the posterial lateral aspect of the left distal arm and elbow.
4.) A 7cm scar on the volar aspect of the left forearm.
5.) A 1 Dem L-shaped scar the dorsal aspect of the left wrist.
6.) A 20 x 20cm skin graft donor site on the left anterior thigh.
The scars are irregular nodular, adherent, hyper pigmented and tender or deep
palpitation. She complains that she experiences scar irritability by way of persistent
itching in the scars and has to constantly massage the affected areas with emollient
moisturising creams supplemented with antihistamine and inflammatory medication
to control the discomfort. Clinical examination also confirmed a 10-degree fixed
flexion deformity (FFD) at the left elbow. Flexion is only possible to 10·.
There has been a left index finger trance metatarsal amputation. There is a total
ankylosis (fixed deformity) at the metacarpal phalangeal joint of the middle, ring and
little fingers on the left hand. As a result of this she has no pinch grip in this hand.'
[36] The plastic surgeon stated that the injuries the plaintiff sustained are extensive
and she will probably need to continue with some form of analgesia for the rest of
her life especially for the control of the called intolerance of the scar areas.
[37] In respect of disability, the plastic surgeon noted that currently the left hand
function of the plaintiff is severely compromised and she is unable to engage in
bimanual activities due to the restricted movement at the joints and the amputation
of the index finger. The plaintiff has now reached maximum medical improvement
in terms of the injuries sustained. However, her disability is very complex and she
needs to be assessed by an occupational therapist.
[38) Under the heading 'disfigurement' the plastic surgeon recorded the following:
'The scars from the injuries sustained are now fully matured and completely healed.
No further aesthetic improvement can be anticipated.
The scars are symptomatic and need both topical and oral treatment.
There is a significant interference with her activities of daily living. 11
The scarring involves entire left upper extremity and covers less than 10% of the total
body surface area.
These scars cannot be completely covered by normal clothing and they cannot be
improved by surgical revision.
They should therefore be accepted as a serious permanent disfigurement.'
[39] With regard to future employment, the plastic surgeon noted that the plaintiff
has recovered from the injuries sustained with significant disability.
[40] Under the heading 'narrative test' the plastic surgeon recorded as follows:
'From the injuries sustained and the treatment undertaken she is left with significant
scarring involving the left upper extremity.
The resultant disfigurement is ugly and unsightly.
This has affected her self-esteem and personal confidence impacted negatively on
the quality of her life as she is often teased and ridiculed by friends and peer groups
because of her appearance.
Aesthetic/cosmetic impairment is a subjective clinical entity that is very difficult to
quantitate as there are no established objective indices that can be used to accurately
assess the impact of the condition on the individual psyche.
As a clinical sequela is related to personality and behavioural aspects of the
individual's life resulting in a condition akin to a post-traumatic stress disorder (PTSD
assessment and opinion of a psychologist is recommended).
As her condition cannot be eradicated by surgical revision it should be accepted as a
serious permanent · disfigurement.'
The Joint Minute of the occupational therapists:
[41] The two occupational therapists noted the following residual limitations
suffered by the plaintiff:
'Physically, Ms Gela noted slightly increased muscle tone on the left elbow joint.
Mildly reduced range of motion in abduction and adduction of the left shoulder,
moderate reduction of the left elbow and mild to moderate reduction in wrist
movement, moderate to severely reduced muscle strength of the left upper limb;
12
severe impairment in the left hand grip strength, moderately reduced quality hand
function, moderately reduced manual dexterity skills and moderate impairment in
weighted and unweighted elevated work.'
[42] With regard to activities of daily living the plaintiff is independent with mobility
and personal care. She is independent for feeding and dressing activities as she
has learned alternative techniques in rehabilitation. She participates in meal
preparation but has difficulty chopping vegetables so she makes use of cutters and
twisters. She uses her right hand for stirring and to manipulate can openers, whilst
stabilising with her left hand. She requires assistance with pushing a heavy trolley
and with carrying shopping bags.
[43) Both therapists noted that the plaintiff reported some emotional or behavioural
changes since the accident as she now presents with body image issues due to the
appearance of her left arm.
[44] I will refer to further aspects reported in the Joint Minute of the occupational
therapists and with the contents of the Joint Minute of the industrial psychologists,
as well as the evidence of Ms Gela, hereunder when I deal with loss of earnings
specifically .
Loss of earnings :
Contingencies :
[45] Munro Forensic Actuaries calculated the capital value of the plaintiffs loss of
earnings based on, inter alia, the report by Ms Pepu, the plaintiffs industrial
psychologist. The said capital amounts, without any contingencies applied, are the
following:
Past pre-morbid earnings
Future pre-morbid earnings
Minus Post-morbid earnings
Total loss of future earnings
Total loss of earnings R 11 700.00
R7 539 500.00
R 972 300.00
R6 567 200.00
R6 678 900.00
13
[46] Contingencies discount the vicissitudes of life and it is a method used to arrive
at fair and reasonable compensation. The question of contingencies was dealt with
in Southern Insurance Assocation Ltd v Bailey NO 1984 (1) SA 98 (A) at 113G and
116G to 1170:
'Any enquiry into damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future, without the benefit of crystal balls,
soothsayers, augurs or oracles. All that the Court can do is to make an estimate,
which is often a very rough estimate, of the present value of the loss.
Where the method of actuarial computation is adopted, it does not mean that the trial
Judge is "tied down by inexorable actuarial calculations". He has "a large discretion
to award what he considers right" (per HOLMES JA in Legal Assurance Co Ltd v
Botes 1963 (1) SA 608 (A) at 614F). One of the elements in exercising that discretion
is the making of a discount for "contingencies" or the "vicissitudes of life". These
include such matters as the possibility that the plaintiff may in the result have less
than a "normal" expectation of life; and that he may experience periods of
unemployment by reason of incapacity due to illness or accident, or to labour unrest
or general economic conditions. The amount of any discount may vary, depending
upon the circumstances of the case. See Van der Plaats v South African Mutual Fire
and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 -5. The rate of the discount
cannot of course be assessed on any logical basis: the assessment must be largely
arbitrary and must depend upon the trial Judge's impression of the case.
It is, however, erroneous to regard the fortunes of life as being always adverse: they
may be favourable. In dealing with the question of contingencies, WINDEYER J said
in the Australian case of Bresatz v Przibil/a (1962) 36 ALJR 212 (HCA) at 213:
"It is a mistake to suppose that it necessarily involves a 'scaling down'. What it
involves depends, not on arithmetic, but on considering what the future may
have held for the particular individual concerned ... (The) generalisation that
there must be a 'scaling down' for contingencies seems mistaken. All
'contingencies' are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff might have had prospects or chances of advancement and increasingly
remunerative employment. Why count the possible buffets and ignore the
rewards of fortune? Each case depends upon its own facts. In some it may
14
seem that the chance of good fortune might have balanced or even outweighed
the risk of bad."'
[47] In Gil/banks v Sigournay 1959 (2) SA 11 (N) the following was stated at 17E
-F in respect of contingencies in an estimation of a plaintiffs claim for loss of
earnings:
'In any estimate of a person's loss of earning capacity allowance must be made for
all contingencies including the accidents of life and certain deductions must be made
from the estimated gross income to allow for unemployment benefits, insurance and
so on. These contingencies would include -
(i) a possibility that plaintiffs working life may have been less than sixty-five
years;
(ii) a possibility of his death before he reaches_ the age of sixty-five years;
(iii) the likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation and deflation;
(vi) alterations in the cost-of-living allowances;
(vii) an accident whilst participating in sport such as hockey or cricket, or at
any other time which would affect his earning capacity; and
(viii) any other contingency that might affect his earning capacity.'
[48] In Road Accident Fund v Reynolds (A5023/04) [2005] ZAGPHC 19 (18
February 2005) the full court held as follows:
'Contingencies may consist of a wide variety of factors. They include matters such
as the possibility of error in the estimation of a person's life expectancy, the likelihood
of illness, accident or employment which in any event could have occurred and
therefore affects a person's earning capacity .. .'
[49] In Van der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980 (3) SA 105 (A) at 115C -D the court held that it has a discretion in allowing
contingencies . The said discretion must be based upon the circumstances of the
particular case.
15
[50] In O/amini v Road Accident Fund (59188/13) [2015] ZAGPPHC 646 (3
September 2015) at paras 30-31 the court dealt with and applied some guidelines
referred to by Koch in The Quantum Year Book:
'(30) Koch refers to the following as some of the guidelines as regards contingencies:
"Normal contingencies" as deductions of 5% for past loss and 15% for future
loss.
"Sliding scale": 1/2 % per year to retirement age, i.e. 25% for a child, 20% for a
youth and 10% in the middle age and relies on Goodall v President Insurance
1978 (1} SA 389.
"Differential contingencies" are commonly applied, that is to say one percentage
applied to earnings but for the accident, and a different percentage to earnings
having regard to the accident.'
Pre-morbid future loss of earnings:
[51] According to the plaintiff's industrial psychologist, Ms Gela, as set out in the
relevant Joint Minute, the plaintiff would have completed the National Certificate
Vocational Level 4 in Hospitality. In 2021, it is likely that the plaintiff would have
secured employment on the open labour market earning at Paterson Level 81 (25th
percentile). The plaintiff would have taken advantage of on-the-job training
opportunities in order to qualify for progression and promotion opportunities over
the course of her career. According to the industrial psychologist, it is consequently
likely that she would have progressed at a 3 to 5-year interval to earning at the 50th
percentile to Paterson Level C4 in 2024 and inflation adjusted until retirement age
of 65. Although the defendant's industrial psychologist, Ms Tomu, postulated the
pre-morbid career of the plaintiff differently , it is in my view irrelevant for purposes
of the calculation since the defendant is not disputing the calculations of the actuary,
but only the contingencies to be applied.
[52] Ms Banda pointed out that in the Joint Minute of the occupational therapists
the plaintiff's occupational therapist, Ms Gela, opined that in view of the plaintiff's
previous school performance and post-school training results, an opinion by an
educational psychologist and an industrial psychologist is deemed necessary to
deal with the plaintiff's pre-morbid career path, employment prospects and
16
progression. Ms Gela, however, further opined that pre-morbid the plaintiff was
physically competent to execute all types of physically based work across the
spectrum of manual intensive labour occupations.
[53] As previously indicated, the industrial psychologist of the plaintiff, Ms Pepu,
did indeed testify in court. During her cross-examination she denied that the opinion
of an educational psychologist is necessary in the circumstances , since one only
makes use of such an expert where a plaintiff was still attending school at the time
of the relevant accident, but not when a plaintiff has already completed school at
the time of the accident. She opined that an education psychologist would not have
been able to provide any relevant opinion in the circumstances of this matter.
[54] In the joint minute of the occupational therapists the following is stated:
'Further, Ms Gela indicated that there is uncertainty regarding her ability to work till
normal retirement age of 65 years given the pre-accident history of arthritis in the left
knee and lymphoma in the left foot. However, deference is made to the relevant
experts for comment in terms of the lymphoma, mild arthritis and life expectancy .'
[55] In her report as such Ms Gela dealt with the aforesaid aspects as part of the
pre-morbid medical history of the plaintiff and stated the following:
'In 2003, she was diagnosed with mild arthritis in the left knee and had the excess
fluid removed through an operation. In 2007 she had her tonsils removed in hospital.
In 2010, she was diagnosed with lymphoma on the left foot, she had a removal
surgery to treat this and she reported no residual side effects as a result of any of the
above medical problems.' (Emphasis added]
Significantly, at the very same paragraph 6.2 of the said report, it is indicated
that pre-morbid the plaintiff did not take any medication.
[56] Ms Banda stated in her heads of argument that none of the plaintiff's experts
commented on these pre-existing conditions and its likely to effect on the plaintiffs
employability in future. She further submitted that a higher than normal pre-morbid
contingency should be applied particularly when considering that arthritis is a
progressive condition which affects physical capacity over time. These aspects
17
have indeed not been raised by either the orthopaedic surgeon or the plastic
surgeon. Furthermore , the defendant failed to cross-examine the plaintiff and the
industrial psychologist on these aspects and in the absence of any medical evidence
with regard to the possible effect these previous conditions could have on the
employability of the plaintiff, I cannot take it into consideration as it would be mere
speculation.
[57] Ms Banda also submitted that a higher than normal pre-morbid contingency
should be applied considering the plaintiff's failures at school and during her studies
at college. However, the plaintiffs industrial psychologist testified that she and the
defendant's industrial psychologist agreed that pre-morbid the plaintiff would have
completed the National Certificate Vocational Level 4 in Hospitality and would
probably have obtained a diploma thereafter. However, I do agree that it is one of
the factors which should be taken into consideration in determining a fair and
reasonable contingency pre-morbid.
[58] Ms Banda submitted that a contingency of 65% should be applied to the
plaintiffs pre-morbid loss of earnings. Mr Skoti submitted that the 'usual'
contingency in respect of such loss, namely 15% is to be applied. It is to be noted
that although Mr Skoti suggested 15%, he made his calculation in his heads of
argument incorrectly and only applied a 5% contingency, I accept accidentally so.
Be that as it may, in view of the totality of the evidence, I am of the view that a slight
upward adjustment from the so called usual contingency is necessary and just in
the circumstances, considering the plaintiffs academic history.
[59] I am consequently of the view that a contingency of 17% will be fair and
reasonable in the circumstances to be applied to the plaintiffs pre-morbid future
loss of eaarnings.
Post-morbid future loss of earnings:
[60] In the Joint Minute of the occupational therapists, the ·following is recorded in
respect of the plaintiffs vocational potential in the injured state:
18
'Post-morbidly, the therapists agree that [the plaintiffs] scholastic and vocational
capacity have been significantly compromised by noted physical challenges as
confirmed by the experts in their respective reports.
Ms Tom opined that post-accident, the claimant cannot fully cope with the physical
demands of work within a Hospitality industry without the provision of reasonable
accommodations and sympathetic employer. She further opines that the claimant 's
promotional prospects are diminished.
Both therapists agree that the claimant has residual earning capacity at the low-semi­
skilled level within the sedentary light, medium labour levels. She was still a student
at the time of their assessments . Ms Gela is of the opinion that she will struggle to
secure and sustain consistent employment in the open labour market and
recommends consideration for application of higher than normal unemployment
contingencies.'
[61] Although both occupational therapists agreed that the plaintiff has residual
earning capacity at the low semi-skilled level with the sedentary, light, medium
labour levels, the plaintiff's industrial psychologist , Ms Gela, testified that although
she made the projection that the plaintiff would have entered the open labour
market, post-morbid in 2021, it is now clear that the plaintiff has to date not been
able to do so. She testified that it is evident that the plaintiff has a very weak chance
of being able to enter the open labour market at this stage. She will be unable to
compete with able-bodied competitors. She concluded that considering the
plaintiff's 36% whole person impairment, it may have been an error of judgement to
have placed her in the able-bodied category. The plaintiff actually has a minimal
chance of possessing a residual capacity to earn an income.
[62] Both the plaintiff and the industrial psychologist were challenged under cross­
examination that a residual earning capacity could be settled in the fact that the
plaintiff has a first aid certificate which may enable her to earn an income. The
plaintiff satisfactorily responded to this question by stating the obvious, namely that
in order to perform proper first aid, one has to be an able-bodied person. She will,
for example, not be able to perform CPR on a patient.
•. 19
[63] The plaintiffs industrial psychologist was also challenged on the availability of
sectoral employment for disabled bodies as encouraged in the government sector.
In her response, she testified that the plaintiff will form part of the 5% of disabled
employees striving to fill a very restricted percentage of positions and will have to
undergo a strict screening process to fit this employment.
[64] During further cross-examination it was posed to the plaintiffs industrial
psychologist that the plaintiff can be employed with an assistant who can assist her
with her relevant duties. The industrial psychologist responded that one does not
enter a job level and obtain the services of an assistant. If at all, the plaintiff will
only be employed by a sympathetic employer, probably at NGO level.
[65] The plaintiffs industrial psychologist also testified that in addition to the limited
employment opportunities, it is likely that the plaintiff will struggle to obtain
employment and that she will retire between the ages of 40 and 45. She therefore
suggested that allowance for early retirement at the age of 42 is recommended and
that higher contingencies are also for this reason recommended.
[66] Ms Banda submitted that a contingency of 35% will be fair and reasonable in
respect of the plaintiffs post-morbid future earnings, whilst Mr Skoti submitted that
20% would be fair and reasonable. It is evident from the evidence of the experts
that they actually concluded that the plaintiff has a very minimal chance of
possessing a residual capacity to earn an income. In fact, Ms Gela testified that it
may have been an error to even have categorised the plaintiff in the able-bodied
category. The plaintiff has a very weak chance, if any, to enter the open labour
market. The probability of early-retirement is also to be taken into consideration .
The contingency to be applied to the plaintiffs post-morbid loss of earnings is in the
circumstances justified to be increased accordingly.
[67] In the circumstances I agree with Ms Banda that a contingency of 35% in
respect of the plaintiffs post-morbid future loss of earnings is fair and reasonable .
20
Past loss of earnings:
[68) The parties are in agreement that a contingency of 5% is to be applied in
respect of the plaintiffs past loss of earnings and I am in agreement with them that
it will be a fair and reasonable percentage.
Calculation:
[69) The calculation by the actuary was done on 15 April 2019. The actuary
is consequently to be requested to prepare an updated actuarial
calculation in respect of the capital value of loss of earnings of the plaintiff
as set out in the actuarial report and with contingencies as set out in the
order hereunder, updated to date of this order. I can then be approached
in chambers with a Draft Order to make an order accordingly.
General damages:
Legal principles:
[70) In O v Road Accident Fund (15/24390) [2017) ZAGPJHC 61 (3 March 2017)
at para 17 the court confirmed the following principle:
'[17) In determining general damages the court is called upon to exercise its
discretion to award what it considers to be fair and adequate compensation
having regard to a broad spectrum of facts and circumstances connected to
the plaintiff and the injuries sustained by him including their nature,
permanence, severity and their impact on his lifestyle.'
[71] In Road Accident Fund v Marunga 2003(5) SA 164 (SCA) at para 23 the court
also stated this principle as follows:
'[23) This Court has repeatedly stated that in cases in which the question of
general damages comprising pain and suffering, disfigurement, permanent
disability and loss of amenities of life arises at trial Court in considering all the
21
facts and circumstances or a case has a wide discretion to award what it
considers to be fair and adi:-'!quate C!lmpensation to the injured party .. .'
[72] Previous comparable awar.:'s, ad.l'Jsted to reflect current values, are also
considered as guidelines as to what would be a fair and reasonable award.
However, although comparable cas.a~ offer some guidance in assisting a court to
arrive at its award, it should not be viewed as an absolute standard. In Protea
Assurance Co Ltd v Lamb 1971 (1)'SA 530 (A) at 535H -536A it was stated that
the comparison of the plaintiff's general damages with that of previous awards need
not take the form of a meticulous e)(amination of awards made in previous cases in
order to fix an amount of comper.~ation and nor should the process be allowed to
dominate the enquiry so as to fetter the general discretion of the court. See also
De Jongh v Du Pisanie NO [2004] 2 All SA 565 (SCA) at para 64.
[73] In the Marunga-judgment supra, at paras 27 to 28 the Supreme Court of
Appeal also considered the following approach as instructive:
'[27] In the Wright-case (Corbett and Honey Vol. 4 E3-36) Broome DJP stated:
'I consider that when he:1ving regard to previous awards one must
recognize that there i§~a tendency for awards now to be higher than
they were in the past. : I believe this to be a natural reflection of the
changes in society, the .recognition of greater individual freedom and
opportunity, rising standards of living and the recognition that our
awards in the past ~ave been significant lower than those in most
other countries.'
[28] The Wright-case at E3-34 -E3-37 is instructive ... '
[74] As pointed out by Ms Banda, on behalf of the defendant, in Du Pisanie-supra,
the court noted the tendency ,towards increased awards in respect of general
damages, but also reaffirmed at para [60] that conservatism is one of the multiple
factors to be taken into account in awarding general damages. At para [56] the court
held that a plaintiff is entitled to fair compensation, but that the amount of such
compensation must also be fair towards the defendant.
/ 22
Comparative awards:
[75] Nxumalo v SA Eagle Insurance Co. Ltd 1995 (4G5) QOD 1 (N):
Plaintiff 20-year old lady. Disfigurement. Extensive degloving injury of right
lower limb from foot to groin leaving plaintiff with severe scars of upper thigh
and lower leg and permanent deformity and disability. Disfigurement of knee
and upper leg consisting of a hyper-pigmented indented scar in the medial
aspect of the knee and thigh approximately 40mm wide medial to the knee
and 80mm wide in the medial thigh area. Some·improvement possible through
use of tissue expander procedure and skin grafts which would be lengthy and
unpleasant. Loss of mobility and feeling with impairment of muscle power.
Hospitalised for three months and on crutches for one and a half month
thereafter. Pre-accident sport curtailed and modelling terminated. The court
awarded general damages in the amount of R90 000.00, the current value of
which is R477 720.00.
[76] O/amini v Road Accident Fund 2023 (8D4) QOD 1 (KZP)
The plaintiff, a 33-year old male general worker with Grade 12, was a scholar
of 14 years at the time of the accident. Fracture of the right humerus at the
junction of the middle and distal thirds sustained during an accident on 20
September 2004. Admitted to hospital. His arm was immobilized with a U­
slab. The fracture was deemed unsatisfactory and he was taken to theatre on
14 October 2004. The fracture was reduced and internally fixed with medial
and lateral Tens nails. Post-operatively his arm was immobilized with a collar
and cuff. He was noted to have a right radial nerve palsy post-operatively and
was fitted with a cock-up splint. According to the orthopaedic surgeon his
permanent disabilities are as follows: pain in the right elbow with strenuous
physical activity; stiffness in the elbow, which precludes him from doing certain
physical activities; permanent loss of range of movement in the right elbow
joint. Impaired manual dexterity, handwriting ability, motor co-ordination,
finger dexterity and aiming. Impaired grip strength in the dominant right hand;
strength and lifting capacity limited to tasks of sedentary to light nature. An
23
award of R550 000.00 was made in respect of general damages, the present
value of which is R578 050.00.
[77] Goodall v President Insurance Co. Ltd 1977 (2D4) QOD 717 (W)
Destruction of right elbow joint. Fourteen surgical operations with two or three
to follow. Prothesis inserted to replace joint but such a failure and it had to be
chiselled out again. Infection and operations to remove bone and glue. Left
with a flail right fore-arm, arm obviously deformed. Except for very limited use
of hand to all intends and purposes a one-handed person, all the worst
because he was right-handed. Comparable with amputated fore-arm cases.
The award for general damages was R 12 500, the present value of which is
R647 875.00.
[78] Viljoen v Minister of Police 2023 (8D5) QOD 1 (GSJ):
The plaintiff, an adult male, as shot through his right hand/fingers. He
sustained a traumatic amputation of right ring and middle fingers. He was
admitted to the emergency room. The hospital records indicated that he
sustained a gunshot wound to the middle finger on the right hand and was
diagnosed with an open comminuted fracture of the right hand. He was treated
with debridement of the wound on his right hand and amputation of the right
middle and ring fingers. He remained in hospital for one week. He suffered
acute pain for four weeks which became moderate for further two months. At
the date of the trial he complained of residual symptoms of the right hand and
pain. The injuries sustained had a profound impact on his amenities of life and
will continue to do so in future. This is exacerbated by the fact that he is right
hand dominant and the injury had resulted in functional limitations that have
severely impacted his daily life and work. He presents with Major Depressive
and Post-Traumatic Stress Disorder and require psychotherapy intervention.
The award for general damages was R700 000.00, the current value of which
is R735 700.00.
[79] Mthembu obo S.S.Z v RAF [2023] ZAGPPHC 462; 81106/2017 (9 June 2023):
24
In this matter the plaintiff suffered a traumatic amputation of the left middle
finger, full thickness with extensive destruction, necrosis of damage to muscle,
bone, all supporting structure. Abridgement of the left ring finger, full thickness,
and volume damage to, or necrosis of subcutaneous tissue, may extend to
both through facia. Lacerations to both lips and mouth with skin loss. A mild
concussion. The impairment evaluation is given at 12% whole body
impairment. The plaintiff is left-hand dominant. The healed scar on the left
ring finger, and left middle finger amputation, healed 2.5 inches' stump from
the MCP point. Pain and suffering. Damages in the amount of R800 000.00
was awarded, the present value of which is R840 800.00.
[80] Pietersen v Road Accident Fund (08/19299) [2011] ZAGPJHC 73 (11 August
2011):
The minor who was involved in this motor vehicle accident suffered a head
injury, an injury of both feet and degloving injuries of the buttocks, the right
shoulder, the right side of the face, the right forearm and the right side of the
scalp and occiput. He underwent a debridement procedure which were done
by a pediatric surgeon and certain debridement procedures and split skin graft
procedures as well as a scalp flap were done some time later.
The CT brain scan was noted to be normal and the x-rays of the cervical spine
were also reported to be normal. The ultrasound of the abdomen was also
noted to be normal.
There is, however, a difference between the said case and the present matter.
In the said case the minor also suffered a moderate brain injury with its
sequelae, which is not present in the matter at hand. The amount of general
damages awarded was R750 000.00, the present value of which is
R1 457 250.00. At paragraph [22] of the judgment the following remarks are
stated, which are also applicable to the matter at hand:
'[22} Degloving injuries are unsightly and will result in the minor child
living with these scars for the rest of his life. The degloving injuries
to the feet are of a serious nature that they affect the manner and
Conclusion: 25
type of shoes that the minor will be forced to wear and there is no
indication that his unsightly scars will disappear or that they will not
affect the minor as he progresses through life .... '
[81) Ms Banda submitted that an amount of R700 000.00 is a fair and reasonable
award for general damages in this case. Mr Skoti submitted that R950 000.00 would
be fair and reasonable in this instance.
[82) I have duly considered the comparative awards the parties referred me to in
their respective heads of argument. Although none of them is on all fours with the
facts of this case in respect of the plaintiffs injuries, I consider the Mthembu­
judgment above as relatively similar to the present case. However, in my view the
fact that the plaintiff has 36% whole person impairment, is already more serious
than the 12% whole body impairment in the Mthembu-judgment. Furthermore, the
plaintiffs degree of permanent disability, permanent scarring and disfigurement is
very severe, considering the totality of the evidence. The severe impact the plaintiff's
injuries have on her life as a whole, is evident from the evidence. Considering that
an award of general damages comprises the consideration of the pain and suffering,
disfigurement, permanent disability and loss of amenities of life a plaintiff suffered,
I consider the present case as very serious in respects of those aspects. The injuries
had a profound impact on the plaintiffs life amenities and will continue to do so. It
resulted in functional limitations that are severely impacting her daily life and her
future. It has also impacted upon her emotionally and has affected her self-esteem
and confidence. The plaintiffs condition cannot be eradicated by surgical revision
and I accept it to be, as suggested by the expert evidence, a serious permanent
disfigurement.
[83) Ms Banda submitted that an award of R700 000.00 for general damages would
be fair and appropriate in the circumstances. Mr Skoti submitted that an amount of
R950 000.00 would be fair and reasonable.
[84] In my view an award of R900 000 as general damages would be fair and
reasonable to both the plaintiff and the defendant.
• 26
Costs:
[85] There is no reason why costs should not follow the outcome of the case.
[86] In view of the totality of the facts to be considered in terms of Uniform Rule
67(A)(3)(b), as well as the facts and circumstances of the present matter, I consider
scale B to be the appropriate scale for counsel's fees.
Order:
[87] The following order is made:
1. The defendant is liable to pay 100% of the plaintiff's proven or agreed
damages.
2. The defendant shall furnish the plaintiff within 180 (one hundred and
eighty) days of date of this order with an undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act, 56 of 1996, to compensate the
plaintiff for 100% of the costs of future accommodation of the plaintiff in
a hospital and/or nursing home or the treatment of or rendering of service
to her or the supplying of goods to her arising out of the injuries sustained
by her in the motor vehicle collision which occurred on 9 January 2018,
after such costs have been incurred and submission of proof thereof.
3. The defendant is ordered to pay the plaintiff the amount of R900 000.00
as general damages.
4. The defendant is ordered to pay the plaintiff loss of earnings in the
amount yet to be calculated, which calculation is to make provision for
the following contingencies:
4.1 5% in respect of past loss of earnings:
4.2 17% in respect of pre-morbid future loss of earnings; and
4.3 35% in respect of post-morbid future loss of earnings.
27
5. The plaintiff's attorney of record is ordered to forthwith request the
actuary to prepare an updated actuarial calculation on the basis of the
calculation in respect of the capital value of loss of earnings of the plaintiff
as set out in the actuarial report:, but with contingencies as ordered above
and all updated to date of this order.
6. Leave is granted to the parties to approach Van Zyl, J in chambers once
the aforesaid calculation is received to obtain a further order for the
payment by the defendant to the plaintiff in the amount calculated
accordingly .
7. The defendant shall pay the plaintiff's taxed or agreed party and party
costs, which costs shall include, but not be limited to, the following:
7.1 The reasonable qualifying fees of the following experts:
7.1.1 Dr SK Mafeelane (Orthopaedic Surgeon);
7.1.2 Dr AM Lalbahadur (Plastic and Reconstructive Surgeon);
7.1.3 Ms K Gela (Occupational Therapist);
7.1.4 Ms B Pepu (Industrial Psychologist); and
7.1.5 Munro Forensic Actuaries.
7 .2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument, to be taxed on scale B.
8. The aforesaid costs are also to include the additional costs for obtaining
the newly calculated and updated report from the actuary as well as any
consequential costs incurred for it to be made an order of court.
For the Plaintiff:
Instructed by:
For the Defendant:
Instructed by: Adv D Skoti
S Mjuleka Attorneys
Clo Bokwa Inc.
BLOEMFONTEIN
e-mail: info(@.mjulekaattorneys.co.za
Ms P Banda
Office of the State Attorney
BLOEMFONTEIN
e-mail: portiab@raf.co.za 28