IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case no: 5876/2022
In the matter between:
OLGA CAPASANA Plaintiff
and
ROAD ACCIDENT FUND
[LINK: 3816132] Defendant
Neutral citation: Capasana, 0 v Road Accident Fund (5876/2022)
Coram: Van Zyl, J
Heard: 11 September 2024
Delivered: 11 March 2025
Summary:
Damages. Motor vehicle accident.. Loss of Earnings. Payment of damages
ordered.
ORDER
1. The determination of the plaintiffs general damages is postponed to the
pre-trial roll of Monday, 14 April 2025.
2. The defendant is ordered to pay the plaintiff her total loss of earnings in
the amount yet to be calculated in terms of paragraph 3, infra.
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3. The plaintiff's attorney of record is ordered to forthwith request the
actuary to prepare an updated actuarial calculation in respect of the
plaintiffs total loss of earnings on the same basis as set out in the
present calculation, but calculated as at 1 April 2025. A 5% contingency
. deduction in respect of the plaintiffs total past loss of earnings and a
20% contingency deduction in respect of the plaintiffs total future loss of
earnings is then to be applied.
4. Leave is granted to the plaintiff to approach Van Zyl, J in chambers with
a Draft Order 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.
5. 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:
5.1 The reasonable qualifying fees of the following experts:
5.1.1 Dr IA Khan (Orthopaedic Surgeon);
5.1.2 Ms N Ndzungu (Occupational Therapist);
5.1.3 Mr T Kalanko (Industrial Psychologist); and
5.1.4 Mr W Loots (Actuary).
5.2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument , to be taxed on scale B.
5.3 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 in order for it to be
made an order of court.
JUDGMENT
Van Zyl, J
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[1] The plaintiff issued summons in this matter for damages she suffered as a
result of a motor vehicle accident which occurred on 8 November 2013. At the time
of the accident the plaintiff was a passenger in the insured vehicle when it capsized
as a result of a tyre burst.
[2] The merits of the action have been settled on the basis that the defendant has
accepted 100% liability for the damages to be proven by the plaintiff. I have been
advised that a court order to this effect has already been issued.
[3] In terms of the amended particulars of claim the plaintiff is claiming general
damages in the amount of R2 000 000.00. Based on the actuarial calculation done
by the plaintiffs actuary, Mr W Loots, the plaintiff is seeking payment for her total
loss of earnings in the amount of RS 298 830.00 (with contingencies to be applied).
[4] The claim for general damages was rejected by the defendant and the plaintiff
elected to refer same to the HPCSA and at the time of the hearing· of this matter, a
decision in respect thereof was still pending. This issue will therefore have to be
postponed to the pre-trial roll.
[5] The plaintiff, Ms Olga Capasana, testified in support of her claim and the
plaintiff also called Mr T Kalanko, an industrial psychologist , as a witness. The
defendant closed its case without calling any witnesses . Both Mr Maliwa, on behalf
of the plaintiff, and Ms Booysen, on behalf of the defendant, filed heads of argument
subsequent to the presentation of evidence.
[6] The issues for determination have been summarized in paragraph 2.1 of the
defendant's heads of argument as follows:
'The Court is called to adjudicate only on the Plaintiff's claim on past and future income as
parties do not agree on the issues that there is no collateral evidence supporting her claim
for loss of earnings/earning capacity; and on the contingencies that were applied in terms
of the Plaintiff's Actuarial Report dated the 5th May 2023.'
The evidence:
Ms Olga Capasana (the plaintiff):
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[7] The plaintiff testified that she was born on 1 December 1984. She is married
and four children were born from the marriage, all of whom are depending on her
husband and herself for financial support. At the time of the plaintiff's evidence the
eldest child was 23 years old, studying at the University of the Free State, the
second child was 13 years old and in Grade 7 and the twin daughters were 10 years
old and in Grade 4. The plaintiff lives at Tempe Military Base in Bloemfontein with
her husband and four children.
[8] The plaintiff testified that in 2001 she left school in Grade 10 due to financial
constraints. At that stage her mother was selling fruit for an income. The plaintiff
subsequently started to assist her and opened at a new section next to her mother,
selling fruit, vegetables, chips and sweets.
[9] During late 2004/early 2005 their neighbour obtained employment for the
plaintiff to work at the scullery of a restaurant called Maria Maan Restaurant, at the
Waterfront, Bloemfontein. She was employed at the said restaurant until 2009.
[1 0] During 2009 the plaintiff was appointed as a chef/cook at llanga Estate,
Bloemfontein. She qualified for this position because of the experience she gained
at Maria Maan Restaurant. She worked at llanga Estate until the accident occurred
on 8 November 2013. After the accident she was unable to return to work due to
the injuries she suffered in the accident. During the period 2009 to 2013 the plaintiff
cooked food at llanga Estate, catering for conferences, weddings and she also
cooked at the lodge. She was responsible for the organizing of the kitchen and the
kitchen staff in her section. She received a salary of R3 500.00 per month plus
overtime. When she received overtime, her salary was approximately R7 000.00 to
R7 500.00 per month. Some months she did not work overtime and only received
her basic salary. The salary used to be paid into an account which she held at
Standard Bank.
[11] The plaintiff testified that late 2023 she went to llanga Estate to see the owner,
but she was told that the owner was overseas. She later went back to llanga, where
she found a new manager who did not know her. The plaintiff, however, received a
cell phone number of the owner. She phoned the owner, who remembered her and
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promised that she will write a letter in which she will provide the plaintiffs employee
number and also copies of her payslips. The plaintiff waited for two weeks without
receiving any feedback from the owner. She then went to the President Hotel,
Bloemfontein, where the office of the owner was. She was also the owner of the
said hotel. The plaintiff found the owner, who told her that one Hester was still busy
with searching in the archives for the plaintiffs information. The plaintiff later again
phoned the owner. The owner responded with a WhatsApp message in which she
told the plaintiff that they were still searching. The plaintiff ended up not receiving
any information regarding her employment from the owner of llanga Estate. The
plaintiff subsequently went to Standard Bank to retrieve old statements as proof of
her income, but was also unable to obtain same due to the lapse of time.
[12] The plaintiff explained in layman's terms that during the accident she broke
her left arm and the doctors used screws to fix her arm. However, the nerve is not
working correctly and she has no power at all in her left arm. Her spine/back is also
stiff and painful and she cannot stand for longer than an hour, then she has to sit
down. She cannot sit for long periods of time, either. She also suffers from splitting
headaches which have the result that she cannot concentrate on one thing for long
periods of time. She explained that the skin on her· left elbow is very thin, since,
during the accident, the bone of the elbow almost showed outside her skin. When
it is cold, she has to bandage her elbow and then put on a jersey over the bandage
in order to suppress the pain.
[13] The plaintiff testified that she could not go back to llanga Estate after the
accident. At llanga she had to carry heavy pots and pans, which she was no longer
able to do subsequent to the accident and the injuries she suffered during the
accident. Her general manager requested her to resign as they could not wait for
her any longer to recuperate. She was not paid any money when she resigned. The
plaintiff testified that she not did not resign out of her own free will, as she would not
have left her employment form which se procured an income. The general manager
left her no other option but to resign, so that somebody else could be appointed in
her position to continue with the obligations of cook/chef.
[14] The plaintiff testified that at the time when she resigned, her left arm was
completely dysfunctional. Even now, she can't carry heavy objects and her arm
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tires very easily. She had to wear a cast on her arm for almost a year after the
accident.
[15] The plaintiff has since been unable to obtain new employment. She has been
trying to earn an income by selling some quarter loafs of bread and fat cakes. Her
sister helps her with the business, which she operates from her parental home in
Phahameng, Bloemfontein. Her sister carries some of the items to the primary
school and sells them there. The plaintiff herself sells ice cream and ice, chips and
quarter loafs of bread at home, but business is very slow. She does not sell any
items at Tempe since she is not allowed to do any selling there. She also bakes
and sells fruitcakes . From the selling of the aforesaid items sh~ makes a combined
profit of approximately R800.00 to R1 200.00. per month.
[16] The plaintiff testified that she consulted with Mr Kalanko, the industrial
psychologist. Her evidence is that her life has changed drastically since the
accident, financially and in all other respects. Prior to the accident she was able to
financially provide for herself and her family, who also included her mother and her
sister. Presently she cannot provide like she used to, although she is attempting to
by means of the products she is selling. Her husband is now the only one in the
family who is employed and he is the sole breadwinner .
[17] A bundle of documents, consisting of 6 pages, was handed in as exhibit 'A'
without any objection from the defendant. One of the documents is a formal letter
from Standard Bank which confirms that the plaintiff used to have a banking account
at the said bank, which account was opened on 21 July 2005 and closed on 15 July
2015. The bundle also consists of two affidavits from formed co-employees of the
plaintiff from llanga Estate. The one employee confirmed that she was working as
a bartender at llanga Estate and when she joined llanga Estate, she found the
plaintiff working there as a cook/chef. That was in 2009 up to the time when the
plaintiff was involved in the motor vehicle accident, where after the plaintiff did not
return to work at llanga Estate. The second affidavit is also by a former co
employee of the plaintiff who used to work at llanga Estate as a gardener from the
year 2006 up to the year 2020. He confirmed that he knows the plaintiff, since she
was also an employee at llanga Estate where she worked as a cook in the kitchen.
The ID documents of the two former co-employees are also attached to the bundle
7
of documents. The plaintiff confirmed the identity of the two former co-employees
and also confirmed the correctness of the contents of their affidavits.
Cross-examination of the plaintiff:
[18] During cross-examination the plaintiff testified that she received a monthly
salary at Maria Maan Restaurar:,t of R4 200.00. At llanga Estate she received
overtime payment the better part of the year, business was quiet only during winter
time. However, during the Macufe Festival, Easter time, Christmas and the rest of
the year it was very busy and she often had to work overtime.
[19] On a question on behalf of the defendant, the plaintiff testified that she has no
payslips available, as more than ten years have lapsed since her employment. She
did not keep her payslips, as she did not know that she will be needing them for
purposes of her present claim against the defendant. Her efforts to obtain payslips
and proof of her employment from the owner of llanga Estate were also in vain.
Re-examination of plaintiff:
[20) During re-examination the plaintiff again testified that she did not leave llanga
Estate voluntarily. She was forced to resign, since the employer could no longer
wait for her to recuperate from her injuries.
Mr T Kalanko (Industrial Psychologist):
[21] Mr Kalanko testified in court with reference to his medico-legal, dated 3 May
2023, regarding an assessment he made of the plaintiff on 30 March 2023. His
report was handed in as exhibit 'B'.
[22] He referred to the following information obtained from the medico-legal RAF4
report by Dr Khan, the orthopaedic surgeon, who made the following diagnosis:
• Malunited left distal humurus fracture.
• Severe degloving injury to left elbow.
• Radial nerve neuropraxia.
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• The patient has reached maximum medical improvement.
• Whole person impairment is 15%.
• The injuries have resulted in severe long-term impairment or loss of a
body function and permanent serious disfigurement.
[23] Mr Kalanko also referred to the following information obtained from the report
of Dr Khan:
• The claimant presents now with complaints of pain in the left arm and
she regularly experiences cramps in the left arm and general
weakness in the left arm.
• She is unable to fully use her left arm.
• On assessment there is loss of some movements in left shoulder.
• In her present state of left upper limb, she will only be able to perform
light duties in future.
• Left elbow has a high chance of developing post-trauma osteoarthritis
secondary to malunion of left distal humurus that has changed
orientation or articular surfaces.
• Scars and loss of sensation are permanent.
[24] In his evidence Mr Kalanko also referred to extracts from the report of Ms N
Ndzungu, the occupational therapist, who referred, inter a/ia, to the fact that at the
time of the accident, the plaintiff was employed at llanga Estate as a chef and after
the accident, she was unable to continue with her work due to accident-related
limitations. Mr Kalanko referred to the following conclusion:
'In conclusion, the claimant's vocational° prospects have been negatively affected
and have been curtailed and will continue to remain limited into the future due to her
physical deficits. If taken all of the above into consideration, level of education, work
history, as well as the findings of the Orthopaedic Surgeon, the writer is of the
opinion that for all practical purposes , the claimant is a lesser competitor in the open
labour market.'
[25] Mr Kalanko referred to the plaintiff's previous employment at Maria Maan
Restaurant until 2009 where the plaintiff earned approximately R4 000.00 per
month. He also referred to the plaintiff's employment at llanga Estate from 2009 to
9
the date of accident where the plaintiff earned an average monthly income of
R6 250.00.
[26] Mr Kalanko further referred to a Table in his report eflecting the lower quartile,
median range and upper quartile of suggested earnings assumptions in the non
corporate sector of R. Koch, 2013. He further recorded the following notes:
'[27] The claimant was unable to provide proof of income or contact details for her
employment. Deference is thus given to the factual information in regard to her
employment and earnings at the time of the accident in question.
[28] The validation of the claimant's actual remuneration at the time of the accident
was not possible. Therefore, considering the level of skill required,
responsibilities and duties assigned as well as overall competencies, it is noted
that the claimant's employment was semi-skilled in nature. Thus, it is
recommended that the annual earnings falling within the median range and
upper quartile for semi-skilled workers as per the suggested earnings
assumptions for non-corporate workers noted in the quantum yearbook (R.
Koch, 2013) as illustrated in Table 7 above, be used for quantification
purposes."
[27] In his report, supported by his evidence, Mr Kalanko dealt with the different
employment scenarios of the plaintiff. In this regard he recorded the following:
'Employed : pre-morbid (had an accident not occurred)
[32] At the time of the accident, Ms Capasana was employed as a chef for llanga
Estate where she earned R72 000.00 per annum. However, due to the lack of
financial information, deference is given to the factual information.
[33] Based on the nature of her employment, it is evident that the claimant relied on
her physical capabilities for gainful employment as indicated in her pre-accident
duties in Table 5 above.
[34] Considering the claimant's vocational exposure and her level of education, it is
probable that the claimant would have either maintained her pre-accident
employment or continued to be exposed to similar employment endeavours
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(semi-skilled) in the open labour market, until the normal retirement age. Writer
notes the earnings as per Analytico for Cooks between ages 45 to 49 as follows:
25th percentile: R67 893, 50th percentile: R119 320; and 75th percentile:
R248 857 (see Table 8 below).
[35] It is likely that the claimant would have continued working in her pre-accident
employment and experience continued upward progression and career growth.
She would have thus likely reached her career ceiling earning within the 75th
percentile for Cooks as per Ana/ytico, by the approximate age of 45. These
earnings are consistent with semi-skilled earnings for non-corporate workers
within the upper quartile as noted below in Table 9.
[36] It is anticipated that workers generally retire at the age of 65. Therefore, it is
postulated that the most probable scenario for retirement for the claimant would
have been at a stipulated retirement age of 65 years, depending on her health,
motivation and retirement policy of her employer at the time.
[37] IT IS PROBABLE THAT MS CAPASANA WOULD HAVE CONTINUED
WORKING IN HER PRE-ACCIDENT EMPLOYMENT OR SECURED SIMILAR
EMPLOYMENT RELATED TO HER EDUCATION EXPERIENCE AND
GENERAL SKILLS AND ABILITIES UNTIL THE NORMAL RETIREMENT
AGE.
Unemployed: post-morbid (situation due to ~he accident):
[38] Following the accident in question, Ms Capasana could not resume her pre
accident employment, owing to the limitations imposed on her as a result of the
accident in question. Although she attempted being a vendor post-accident,
she was unsuccessful and has not secured alternative employment. She
remains unemployed to date. Her challenges and pains are comprehensively
discussed in the injuries and complaints section above. According to Dr Khan
(Orthopaedic Surgeon), the injuries have resulted in severe long-term
impairment or loss of a bodily function and permanent serious
disfigurement.
[39] When one considers the claimant's skills and occupational experiences, they
lie within the unskilled/semi-skilled sector and such sector generally requires a
worker to be physically fit as they are physically demanding in nature. Ms
11
Ndzungu (Occupational Therapist) noted that prior to the accident in
question the claimant's jobs as a chef which is within light demands of
work and demands standing, lifting and carrying objects and bilateral
hand functioning. Ms Ndzungu further submitted that after assessing and
comparing her pre-accident versus post-accident state, the writer is of the
opinion that she will be unable to cope with any highly physically
demanding duties in a variety of occupations during this post-accident
period. She is better suited for sedentary or office-based work, entailing
less repetitive upper limb movements, avoiding elevated arm work and
lifting or carrying of heavy objects. Thus, taking into account that the
claimant is now limited with regards to her limb functionality, it is opined that
she will not be able to return to her pre-accident employment, nor secure
alternative employment within the unskilled/semi-skilled sector. This is
evidenced by her inability to return to her pre-accident employment or secure
gainful employment almost ten years' post-accident. (My emphasis)
(41] Therefore, the writer surmises that it is evident that the claimant's occupational
functioning has been curtailed and, she can no longer perform in her pre
accident capacity. Ms Ndzungu notes that she is currently suited for sedentary
work; however, the claimant does not have the necessary experience or
qualification to undertake such work. The accident has thus rendered the
claimant less competitive and she will likely struggle to secure alternative
employment. Ms Capasana will likely remain unemployed for the remainder of
her natural life. (My emphasis)
[42] The writer submits that the granting of contingencies remains the prerogative of
the court and a matter of negotiation by the legal experts.
(43] IT IS OPINED THAT THE CLAIMANT HAS BEEN RENDERED A
VULNERABLE COMPETITOR IN THE OPEN LABOUR MARKET,
THEREFORE SHE MAY NOT BE ABLE TO RE-ENTER INTO EMPLOYMENT
LABOUR MARKET.'
[28] At paragraph [45] of his report Mr Kalanko opined that the plaintiff suffered past
loss of earnings. After the accident she was admitted to hospital for two months.
Thereafter, she was discharged and continued her recuperation and rehabilitation
12
at her residence for a year and a half. From the report of Dr Khan it is evident that
it took a year for the radial nerve to recover.
[29] In respect of the plaintiffs future loss of earnings, Mr Kalanko concluded as
follows at paragraphs [46] and [47] of his report:
'[46] The calculations done in this report are not an accurate depiction of the
claimant's situation, rather they serve as an example indicating the change in
the available income that the claimant has pre-morbid and post-morbid . These
calculations are simply used as a guideline in establishing the claimant's ability
to provide support for the family both in daily expenses as well as child care if
there are dependents. For actual income and loss calculations, the writer defers
to an actuarial report.
[47] It is assumed that the accident in question has affected the claimant's overall
functi~ning, which will likely result in future loss of income as she is not able to
compete on par with her healthier uninjured counterparts in the open labour
market. Owing to the seriousness and nature of the injuries sustained, she will
be regarded a vulnerable competitor for the remainder of her career. It is also
noted that she will likely remain unemployed for the rest of her life. The
difference between her pre-accident and post-accident earnings potential must
be used when calculating the future loss of earnings ....
[30] In his evidence Mr Kalanko testified that what the plaintiff is presently doing by
selling the items like she testified, is not sustainable. She is in constant pain and
her residual capacity is not on level to her pre-morbid capacity. The plaintiff is
struggling to persevere with the selling of the items and she can in any event not do
it independently without the assistance of her sister.
[31] Only one question was posed to Mr Kalanko in cross-examination. He was
only asked whether he had any collateral information regarding the past career and
past income of the plaintiff, to which he responded in the negative and testified that
he relied on what the plaintiff told him.
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Actuarial Report:
[32] Mr W Loots, an actuary, prepared an actuarial report. The said report is dated
5 May 2023. The loss of earnings of the plaintiff was calculated as at 1 July 2023.
The actuary based his report and calculations on the report of Mr Kalanko. No
evidence was presented by the defendant to gainsay the report and evidence of Mr
Kalanko. With regard to the post-morbid earnings of the plaintiff, the actuary stated
in his report that the plaintiff has remained unemployed since the accident and is in
Mr Kalanko • s opinion unemployable in future for the reasons stated in his r~port and
therefore he (the actuary) assumed nil earnings. Mr Loots consequently calculated
the plaintiff loss of earnings to be the following (calculated without any contingency
deductions):
(a) Past Earnings pre-morbid
(b) Future Earnings pre-morbid
(c) Past Earnings post-morbid
(d) Future Earnings post-morbid
Total Loss of Earnings R1 207 979
R4 090 851
0
0
R5 298 830
[33] Ms Booysen submitted that since no proof of the plaintiffs past employment
and income have been obtained, no collateral evidence is available in support of
the plaintiffs version in this regard. She submitted that the plaintiff is therefore not
entitled to any past loss of earnings. In respect of pre-morbid future loss of earnings
Ms Booysen submitted that a 45% contingency deduction would be appropriate and
in respect of post-morbid future loss of earnings a contingency deduction of 60%
would be fair and reasonable. Her submission in support of these high contingencies
is based on the absence of collateral evidence.
The absence of collateral evidence:
[34] There is not a complete lack of collateral evidence, considering the affidavits
of the two former co-employees of the plaintiff. The plaintiff was also not cross
examined on her evidence regarding her past career and her past income. Her
evidence in this regard stands completely undisputed . In any event, the trite
principle is that where a plaintiff has proved some patrimonial loss but there is
insufficient evidence (which is, in my view, not the case in the present matter) to
14
enable (precise) assessment, the court may in some instances estimate damages
on the best available evidence. In De Klerk v Absa Bank Ltd2003 (4) SA 315 (SCA)
at 333H this principle was enunciated on as follows:
'There have been numerous decisions in which our Courts have said that a Court will
come to a plaintiffs aid in a case of uncertainty and make an estimate in his favour,
provided he has led the best evidence available -see, for instance, Ens/in v
Meyer 1960 (4) SA 520 (T) at 523F -524A.'
See also Dube v Road Accident Fund (2015-03387) [2024] ZAGPJHC (6 March
2024)
[35] The plaintiff gave detailed evidence as to how she attempted on numerous
occasions to obtain proof regarding her employment and her income at llanga
Estate, but without success. In the circumstances of this case and considering what
I also stated in the previous paragraph, there is, in my view, no basis upon which
the plaintiffs evidence in this regard is not to be accepted and consequently also
so the actuarial calculation which is based on the said evidence. I consequently find
that the plaintiff duly proved her total past loss of earnings and total future loss of
earnings.
Contingency deductions :
[36] The determination of a suitable contingency deduction falls within the
discretion of the court.
[37] 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 Association 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.
15
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 HOLM~S JA in Legal Assurance Co Ltd v
Bates 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 Przibi/la (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
seem that the chance of good fortune might have balanced or even outweighed
the risk of bad."'
[38] 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.
[39] In Olamini 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:
16
'[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.'
[40] In my view and considering the findings I have already made, there is no
reason why a substantial higher p~rcentage of contingency is to be deducted from
the plaintiffs loss of earnings. I consider a contingency deduction of 5% in respect
of the plaintiffs total past loss of earnings and a contingency deduction in respect
of the plaintiffs total future loss of earnings of 20%, to be fair and reasonable in the
circumstances of this matter.
[41] As mentioned earlier, the calculation date of the actuary was as at 1 July 2023.
The calculation is consequently to be updated. The actuary is therefore to be
requested to prepare an updated actuarial calculation in respect of the plaintiffs
total loss of earnings on the same basis as set out in the present calculation, but
calculated as at 1 April 2025. A 5% contingency in respect of the plaintiffs total past
loss of income and a 20% contingency in respect of the plaintiffs total future loss of
income is then to be applied. Once the calculation is available, I am to be
approached in chambers with a Draft Order to make an order accordingly.
Costs:
[42] There is no reason why costs should not follow the outcome of the case.
[43] 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.
17
Order:
[44] The following order is made:
1. The determination of the plaintiffs general damages is postponed to the
pre-trial roll of Monday, 14 April 2025.
2. The defendant is ordered to pay the plaintiff her total loss of earnings in
the amount yet to be calculated in terms of paragraph 3, infra.
3. The plaintiff's attorney of record is ordered to forthwith request the
actuary to prepare an updated actuarial calculation in respect of the
plaintiffs total loss of earnings on ·the same basis as set out in the
present calculation, but calculated as at 1 April ~025. A 5% contingency
deduction in respect of the plaintiffs total past loss of earnings and a
20% contingency deduction in respect of the plaintiffs total future loss of
earnings is then to be applied.
4. Leave is granted to the plaintiff to approach Van Zyl, J in chambers with
a Draft Order 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.
5. 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:
5.1 The reasonable qualifying fees of the following experts:
5.1.1 Dr IA Khan (Orthopaedic Surgeon);
5.1.2 Ms N Ndzungu (Occupational Therapist);
5.1.3 Mr T Kalanko (Industrial Psychologist); and
5.1.4 Mr W Loots (Actuary).
5.2 Counsel's fees, including, but not limited to, the costs of the drafting
of heads of argument, to be taxed on scale B.
.-
' 18
5.3 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 in order for it to be
made an order of court.
Appearances:
For the Plaintiff:
Instructed by~
For the Defendant:
Instructed by: Adv S H Maliwa
Z Xakwe Attorneys Inc.
Clo Gcasamba Attorneys
BLOEMFONTEIN
E-mail: qcasambainc@gmail.com
Ms M Booysen
Office of the State Attorney
BLOEMFONTEIN
E-mail: meganb@raf.co.za