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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: 297/2022
In the matter between:
COLLEN GUGUSHE Plaintiff
and
ROAD ACCIDENT FUND
Defendant
HEARD ON: 15 AUGUST 2024
JUDGMENT BY: MHLAMBI, J
DELIVERED ON: This judgment was handed down electronically by
circulation to the parties’ legal representatives by email and released to SAFLI. The date and time for the hand -
down are deemed to be 11h3 0 on 17 February 2025
[1] The matter served before me on 8 August 2024 for the adjudication of
the plaintiff’s claims for Past Hospital and Medical Expenses and past
and Future Loss of Earnings . On 1 September 2023, orders were
granted concerning the merits (80%), general damages (R520 000.00)
and the Section 17(4)(a) Undertaking for future hospital and medical
expenses.
[2] In the trial, the parties agreed that the plaintiff’s claim for past hospital
and medical expenses should be postponed to a future pre- trial date.
They also agreed that the past loss of earnings was R226 690.00 as
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reflected in the actuarial calculations. The only issue for adjudication
was the appropriate contingencies for the future injured and uninjured
earnings. The parties agreed that the past and future loss of earnings could be adjudicated upon the plaintiff’s actuary’s calculations , whose
basis and assumptions were admitted as correct.
[3] The parties agreed that the joint minutes of the occupational therapists
and industrial psychologists be admitted and accepted into evidence.
These joint minutes formed the basis of the actuarial calculations.
[4] The industrial psychologist s agreed that the plaintiff was mainly
employable in unskilled and semi -skilled employment categories .
Injuries sustained in the accident had a marked effect on all amenities,
disrupting his career and future opportunities. A complete functional
capacity assessment may need to be done at optimal recovery . Still, it
appeared highly likely that the plaintiff would be unable to return to a
job with high physical and mobility requirements. He would find himself
a vulnerable, unequal competitor in the open labour market in jobs
suited to his educational level, work experience and physical capacity. Although improvement could be expected to some extent, he would probably not return to his pre- morbid level of functioning.
[5] He would probably remain suited for jobs with sedentary to light
physical requirements with aspects of medium work. He would,
therefore, require realignment into a job suited to his physical abilities.
The industrial psychologists concurred with the occupational therapists
that the plaintiff would find himself a vulnerable, unequal competitor in
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the open labour market in jobs suited to his educational level, work
experience and physical capacity.
[6] The plaintiff ’s industrial psychologist was of the view that considering
the plaintiff’s level of education, which pre- disposed him to work in the
unskilled employment category, which is physical with physical
limitations, he was not a candidate for sedentary employment as he
would have to compete with persons with degrees and candidates with
diploma qualifications. The plaintiff was , therefore, practically
unemployable in the open labour market as employers would prefer
able- bodied and competent employees. The plaintiff was likely to
experience difficulties securing and sustaining employment in his injured state.
[7] The defendant ’s industrial psychologist stated that the plaintiff would
likely struggle to generate income in the open labour market , noting the
report from the occupational therapist and that he would be competing
against able- bodied individuals. Should he be fortunate to find an
accommodative employer, his remuneration would likely be restricted
to the low unskilled worker levels when considering his work
experience, education and limitations. His employment would likely be
characterised by periods of unemployment. His injuries were repor ted
to be serious and long- term. Both experts noted that applying
contingency deductions remained the court's prerogative or a matter
for negotiation between the parties involved.
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[8] Both the occupational therapists confirmed what was agreed upon by
the industrial psychologists , as stated above. They decided that, at the
time, the plaintiff presented with compromised mobility, agility, balance
and load handling. His current physical -functional capacity did not meet
the key requirements of his job in the stopping team in the mine. Although improvement in his condition could be expected to some
extent, he would not return to his pre- morbid level of functioning. He
would, therefore, be a vulnerable and unequal competitor in the labour
market.
[9] Based on these minutes and reports , the actuary catered for two
scenarios in the actuarial calculations. Premised on the plaintiff’s
industrial psychologist's opinion, the future loss of earnings was
calculated at R 4 408 185.00. The second scenario, premised on the
defendant’s industrial psychologist’s opinion , reflects the future loss of
earnings as R 3 971 225.00. The contingencies employed before the
accident occurred were 5% and 15% on past and future earnings ,
respectively, and 25% on future earnings thereafter .
[10] The plaintiff contended that there was merit in both scenarios 1 and 2
of the actuarial calculations . Therefore, the median between the two
scenarios probably reflected the most accurate postulation. The
contingencies applied in both scenarios we re justified and should be
accepted based on the experts’ agreed facts and opinions. Although
the experts disagreed on the issues of the plaintiff’s employability in the
injured state, both might be correct in their respective views. Hence,
the submission that the truth lies in the middle of their respective
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opinions and a median between the two scenarios should be accepted
as a more accurate reflection of the injured scenario.
[11] The plaintiff prayed for an order that the amount of R 3 533 120.00
should be awarded in respect of his claim for past and future loss of
earnings , which is calculated as follows:
Past loss of Earnings : R 226 690.00
Future Loss of Earnings : R 4 189 710.00
SUB TOTAL : R 4 416 400.00
Less 20% apportionment : R 883 280.00
TOTAL : R 3 533 120.00
[12] The defendant submitted that a 35% pre- morbid contingencies
deduction should be allowed because of occupation -specific
contingencies such as:
1. The plaintiff was still in the establishment face of his career;
2. As an underground worker for a mining company , he would have
had to pass frequent fitness tests to work underground;
3. His occupation carried more specific contingencies which could
have resulted in him being unable to pass the regular fitness tests which may have directed his career path in a different direction;
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4. It was well known that the Mining and Safety Act required tests
which extended screen relating to eyes, audio/hearing, lungs/chest, glucose, blood pressure and head test;
5. The plaintiff might have developed any illness/medical condition (diabetes, TB, cholesterol, lung diseases) which have resulted in his passing the required tests. The industrial psychologists agreed that the plaintiff’s health status might have affected his pre-morbid ability to work to 65 years old;
6. Mining is well known as a potentially dangerous industry that poses many occupational health and safety risks to workers.
[13] The defendant contended further that it was common cause that the plaintiff was not unemployable and did have a residual earning capacity. This could be deduced from the comment by the industrial psychologists that a higher post -morbid contingency should be applied.
Such a comment would not have been made if no future income were foreseen. The plaintiff was 31 years old, had residual capacity, had demonstrated himself to learn new skills , and had various unskilled
occupations for which he could contend. These favourable
contingencies call for a lower deduction of 10% and not 25% in post -
morbid income for which the plaintiff contended. This will result in a future loss of earnings of R 3 073 315.00, calculated as follows:
Agreed past loss of income : R 22 690.00
Future loss of income : R 2 846 625.00
Total : R 3 073 315.00
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[14] The amount of R 3 073 315.00 would be pre- apportioned, and after
apportionment, it would amount to R 2 458 652.00 (R 3 073 315.00-
20% = R 2 458 652.00).
[15] Having considered the above, it is clear that the plaintiff does have a
residual earning capacity. I agree with the defendant that scenario 2 is
more acceptable taking all the circumstances into account. As concerns the appropriate contingency deductions to be applied, and guided by the experts’ joint minutes, I am of the view that the appropriate contingencies applicable in this matter should be as
follows:
1. Uninjured: 20% on future earnings;
2. Injured: 25% on future earnings.
[16] Applying the above figures to scenario 2, the calculation of the total loss of the past and future earnings is as follows:
1. Past loss of earnings : R 226 690.00
2. Future loss of earnings : R 3 971 235.00
SUB TOTAL : R 4 197 925.00
Less 20% apportionment : R 839 585.00
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TOTAL : R 3 358 340.00
[17] I, therefore, grant the following order.
Order:
1. The defendant is ordered to pay the plaintiff the amount of R
3 358 340.00(Three million five hundred and fifty -eight thousand, three
hundred and forty rands) in full and final settlement of his claim for past
and future loss of earnings / earning capacity.
2. The plaintiff’s claim for past hospital and medical expenses is postponed
to the Rule 37(8) pre- trial roll.
3. The amount in paragraph 1 above shall be payable within 180 (ONE
HUNDRED AND EIGHTY) days of date of this order into the account of
the plaintiff’s attorneys with the following particulars:
Account Holder : S.B Seshibe Attorneys
Bank name : Nedbank
Branch code : Central
Account Number : 1[…]
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Type of Account : Trust Account
Ref : Mr Seshibe/RAF162/2021
4. In the event that the defendant is in default to make payment of the
amounts in paragraph 1 above within 180 (one hundred and eighty)
days of the date of this order, interest will accrue on the said amounts at the prevailing legal interest rate of 10.50% per annum which is in accordance with the provisions of the Prescribed Rate of Interest Act 55
of 1975 read together with section 17(3) of the Road Accident Fund Act
56 of 1996 (as amended).
5. The defendant shall pay the plaintiff ’s taxed or agreed party and party
costs on High Court Scale B of the action set down for the 6
th, 7th & 15th
of August 2024.
6. Fees and disbursements in this action (hereafter "costs") will include but
not be limited to the following:
a. Any and all costs incurred in obtaining payment of the costs and/or amounts mentioned herein;
b. Counsel's/legal representations' costs in the course of litigation of this matter, including preparation and reservation;
c. Reservation costs for the duration of the trial as set down in respect of the instructing attorney;
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d. Fees levied by counsel will be calculated at scale B and include
preparation, reservation and appearance for the matter set down for the 6
th, 7th & 15th of August 2024.
e. Plaintiff and legal representations' travelling, and accommodation costs actually incurred, if applicable;
f. Costs for work done by the plaintiffs' legal representation in respect of preparation, compilation, pagination, sorting, binding, service, delivery, scanning and filing of copies of the pre- trial and trial
bundles for use by the representing parties, their counsel and court;
g. Costs of travelling to, arranging, pagination and attending to pre- trial
conferences, court appearances, expert appointments and settlement negotiations, including (if applicable) counsel's charges in respect thereof, for the Plaintiff.
h. Travelling costs of the Plaintiff and their witnesses as it relates to the attendance at trial (if applicable);
i. The qualifying and/or reservation fees attached to the procurement
of medico- legal reports, addenda, and joint minutes, including the
taxed or agreed costs of the plaintiff attending to the medico- legal
examinations of the following experts:
6.1 Dr Bongobi (Orthopedic Surgeon);
6.2 Rene Walker (Occupational Therapist);
6.3 Optimum Talent Solutions (Industrial Psychologist), and
6.4 Munro Forensic Actuaries (Consulting Forensic Actuaries).
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7. In the event that plaintiff ’s costs are not agreed, the plaintiff shall serve a
Notice of Taxation on the defendant's attorney of record; and the plaintiff
shall allow the defendant 14 (fourteen) court days to make payment of
the taxed costs, failing which interest will accrue on the taxed costs at
the prevailing legal interest rate of 10.50% per annum.
MHLAMBI , J
On behalf of the Plaintiff : Adv. DR Thompson
Instructed by: MM Hattingh Inc.
1A Goodale Street
Waverley
Bloemfontein
On behalf of the Defendant : Ms J Gouws
Instructed by: Office of the State Attorney Bloemfontein
11
th Floor Fedsure Building
49 Charlotte Maxeke Street
Bloemfontein