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 SOUT H AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE
CASE NO. 4933/ 2021

In the matter between:

ADV S BOTHA N.O
on behalf of MICHAEL JAMES MIENIE Plaintiff

and

ROAD ACCIDENT FUND Defendant


JUDGMENT

PARKER, AJ:

Introduction

[1] Prior to hearing the matter in respect of quantum , Plaintiff filed an interlocutory
application seeking an order for leave to be granted for the evidence of certain of its
experts to be given on affidavit. The Defendant’s opposition was withdrawn on the day
of the hearing . In the exercise of my discretion , I deemed it prudent given the nature of
the proceedings and the evidence on affidavit to be led, I found it to be fair to allow such
evidence on affidavit1 for the purposes of quantum , bearing in mind that there was very
little in dispute between the parties. I am of the view that the application , which
attracted additional costs , could have been conceded by the Defendant earlier than at
the day of the hearing and erased the need for Plaintiff to have brought such
application.

[2] The evidence adduced via affidavit related to the following expert witnesses
namely :

2.1 Dr Rael Jaffe - Orthopedic Surgeon
2.2 Professor Tuviah Z abow – Psychiatrist ;
2.3 Dr Zane Domingo – Neurosurgeon ;
2.4 Ms N H ugo - Occupational Therapist ;
2.5 Ms B Grobelaar - Industrial Psychologist ; and
2.6 Ms A Valentine - Munro Forensic Actuary.

Background

[3] The Plaintiff instituted action against the Defendant following a collision which
occurred on 9 August 2018 when Mr. Michael James Minnie (the patient) was injured .
He suffered a brain injury and orthopedic injuries.

[4] Since the merits have been conceded all that remained in dispute is in respect of
the Plaintiff’s loss of earnings.


1 Madibeng Local Municipality v Public Investment Corporation Ltd 2018 (6) SA 55 (SCA) at 61G .
[5] The patient was assessed by the experts enumerated above including an expert
report filed by th e Defendant , namely that of Dr Zandile Madl abana -Luthuli, who is an
Industrial Psychologist.

Joint minutes

[6] Both Plaintiff and Defendant ’s Industrial Psychologists concluded a joint minute
and further, an addendum joint minute. The Industrial Psychologists we re in agreement
that based on the opinions of the Occupational Therapist , the Neurosurgeon and the
Psychiatrist, the patient ’s psychiatric impairment is to a serious degree and that the
patient would be unable to perform the work role of a CNC programmer. His deficits are
in the physical , cognitive and emotional behavioral domains. It was reported that t he
patient was accommodated by a sympathetic employer post morbidly . However,
eventually the employment ended in a dismissal on 15 May 2023 following incidents in
March and April 2023 owing to misconduct and tardiness .

[7] The further findings were that the patient did not achieve matric however he
progressed to be a CNC programmer.

[8] The patient would be unable to perform the role of a CNC programmer given his
dismissal now , and in the future , and accordingly , has been rendered unemployable.

[9] Both Industrial Psychologists agree d that a total loss of earnings has now
occurred given that the patient is no longer suited for the physical , cognitive and
emotional/ behavioural perspective s to perform his work role.

[10] In a nutshell , this is one of those matters where th e Industrial Psychologists are
in agreement save t hat they are not able to pronounce on contingency deductions. The
Plaintiff correctly argued that the parties are bound by the agreements reached between
their respective experts .2 However, that does not mean that judicial officers accept the

2 Bee v R oad Accident Fund 2018 (4) SA 366 (SCA)
opinions of experts blindly, even whe n such experts agree . The experts reasoning must
still be sound and logical as held in S CA in Medi-Clinic v Vermeulen .3 Furthermore, the
SCA in NSS obo A S held;

“However, the wise judicial officer does not lightly reject expert evidence on
matters falling within the purview of the expert witness’s field”

Loss of earnings

[11] Both Industrial Psychologists agree in respect of the patient ’s pre and post-
morbid career paths .

Pre-morbid earnings

[12] The Industrial Psychologists agreed that the patient had 39 working years
remaining and given the nature of his employment , his work experience , skills and
vocation he could have reached his best at age 45 (2037 ) earnings (associated with
Patterson grade B3 given that he was performing skilled work tasks in a technical
capacity) of which the patient ’s earnings equated to R190 080.00 per annum .

[13] The findings of the Industrial Psychologists agreed that the patient would likely
have continued working in the same capacity until he reached the retirement age of 6 5.
In my view , this factor plays a pivotal role when assessing the percentage of
contingencies to be app lied.

Post Morbid Earnings

[14] The Industrial Psychologists addressed the post -morbid earnings in their
addendum report dated 6th of June 2023 . They concur that the patient's pre -morbid
earnings based on the opinions of the Occupational Therapist , the Neurosurgeon and

3 Medi -Clinic v Vermeulen 2015 SA 241 at 250 para 25 -27.
Psychiatrist, the patient's impairment is t o a serious degree and that they were clear he
would be unable to perform work as a CNC programmer in the future.

Contingencies

[15] During argument, both counsel s correctly conceded that conting encies are the
prerogative of the court and both counsel advanced different percentages in respect of
the patient’s uninjured and injured state . In applying my judicial discretion I had regard
to Road Accident Fund v Kerridge .4 The SCA articulated some gene ral rules regarding
contingency deductions , one being the age of a claimant . Namely , the younger the
claimant the more they may fall victim to the vicissitudes of life and other reasons which
are impossible to enumerate. In so far as future loss of earnings is concerned , factors
such as the poor economy and ill health are considerations . The longer the remaining
working life , the more likely the possibility of an unforeseen event occurrin g – to be
considered .

[16] The Plaintiff motivated the contingencies regarding Robert Koch in the Quantum
Yearbook 2024 5 using the sliding scale of a 0.5 percent contingency deduction per year
to the time and age, calculating it to be 25% for a child, 20% for a youth and 10% for
middle age d person respectively . It was argued by the Plaintiff’s Counsel that t he norm
for a deduction of 5% is often applied for past loss of earnings and a 15% contingency
deduction in respect of future loss of earnings. The Defendant did not challenge the
Koch methodology but argued for a contingency deduction of 20% for past loss of
earnings and 40% for future loss of earnings . My discretion then centered arou nd these
percentages .

Actuarial Calculations


4 2019 (2) SA 233 (SCA) para 44
5 Publisher : Van Zyl Rudd
[17] The claim was actuarially calculated by Munro Forensic Actuaries in its repo rt
dated 26th of August 2024. The Plaintiff, in substantiating its argument for a 20%
contingency deduction relied on the Industrial Psychologists who agreed that the patient
was a career starter , and, although considered as an unskilled worker he was
performing skilled work and would have continued working i n the same capacity until
retirement .

[18] The Defendant argued that a higher contingency of 40% should be applied given
that the patient did not achieve matric and would still therefore f all into the unskilled
category. The Defendant’s argument was that the patient changed jobs at various
employers and this factor w as seen in a negative light by the Defendant. The
Defendant lost sight that the court is bound by the findings of the Industrial
Psychologists who agreed that the patient would have stayed in the job position as a
CNC. Their joint minute clearly reflected that although “considered an unskilled worker”
he “was performing skilled work” .

[19] I do not accept that it is appropriate to “punish” the patient for not achieving a
matric . I am acutely awa re that a matric in today’s times is not enough , and even if a
matric qualification is acquired , securing work is competitive , there is likely to be a much
bigger pool for job seekers t o compete when searching for work. I am mindful that
despite the patient’s education , his progress prospered , and his career growth is
admirable. In relying on the factual basis and conclusions drawn by experts whose
reasoning guided the court ; I was hard -pressed to find factors which would substantiate
increasing the contingency deduction significantly to 40% as suggested by the
Defendant for the uninjured state . The Defendant did not advance arguments as to its
reasoning for a 20% contingency deduction to be appl ied for the past loss of income.

[20] I do, however , lean in favour of an increased contingency deduction due to the
joint minutes reflecting that the patient was going to be at a disadvantage “when
compared to his counterparts with the same work experience but higher level of
education ”, of which I take cognizance of, and I have alluded to the job seeking market
earlier, however , there is nothing to persuade me to venture higher than 30%.

[21] Given that the parties are not far apart at all , the Defendant is bound by its
expert’s joint minutes and therefore I am unable to apply a higher contingency as
argued by Defendant. I do, however , think that 20% recommendation by the plaintiff’s
counsel is on the low scale . Accordingly , the calculation is as follows:

Uninjured Injured Loss

Past income: R927 400 R420 500
Less contingencies 5% 0%
Net past income R881 030 R420 500 R 460 530
Future income: R5 404 300 Rnil
Less contingencies 30% 0%
Net future income R3 783 010 Rnil R3 783 010
Total loss: R4 243 540

Costs

[22] The Plaintiff argued for costs on scale B and the Defendant argued for cost s on
scale A. For the Plaintiff, considering the nature of the injuries , the importance of this
case to the patient and the quantum, the costs are justified to be awarded on the higher
scale.

Mediation

[23] This is one of such cases where there was so little in dispute that the Defendant
could have , if it had applied its mind to the matter , have mitigated its costs . This is an
example of a matter where a mediator could have played a meaningful role , focusing on
the narrow and singular issue of contingencies only. Had that been a consideration,
time and costs would have been saved.

[24] As such , it was a go lden o pportunity for an earlier settlement , given the length of
time it took for this matter eventually to be heard, given t hat the matter was declared -
trial ready by Cloete J in June 2023. It is a pity that the Defend ant did not consider
settlement earlier and left it to the court on the single and narrow aspect of determining
the contingencies to be applied.

Order

[25] Having heard the submissions made by counsel it is ordered :

a) The Defendant shall pay the Plaintif f's attorneys the sum of R 4 243
540.00 ("the capital"), by way of an electronic transfer to the trust account, details
whereof are set out hereunder, in respect of the Plaintiff's claim for loss of
earnings.

b) The Defendant shall pay the Plaintiff's taxed or agreed party and party
costs on the High Court scale in respect of the matter set down for 6 February
2025, including but not limited to the following:

(i) The costs incurred after the date of this order in obtaining payment
of the amounts referred to herein.

(c) The qualifying and reservation (if any) fees of the following expert
witnesses, including the costs attached to the procurement of medico -legal
reports and any addendum reports, joint minutes, X -rays, MRI scans, and
pathology reports:

(i) Dr Zayne Domingo (neurosurgeon)
(ii) Dr Rael Jaffe (orthopaedic surgeon);
(iii) Prof Tuviah Zabow (psychiatrist);
(iv) Ms Nicolette Hugo (occupational therapist)
(v) Ms Barbara Grobbelaar (industrial psychologist)
(vi) Munro forensic actuaries.

(d) The reasonable travelling and accommodation costs incurred by the
Industrial Psychologis t to be available at the hearing on 6 February 2025.

(e) The fees of the Plaintiff's counsel, including for furnishing advice on
evidence, preparing for trial and draft ing heads of argument, on Scale B.

(f) Payment of the capital amounts, as set out in this order, must be made
within 14 calendar days from the date of this order.

(g) The Defendant will be liable for interest on the abovementioned capital
amounts calculate d at the legal rate from 14 calendar days after the date of this
or the taxing master’s allocator , in the event of taxing the bill of costs , whichever
is applicable .

(h) The plaintiff's attorneys' trust banking account details are as follows:
Bank: First National Bank
Account Holder: De Vries Shields Chiat Inc.
Branch: Portside
Account Number: 6[...]
Branch Code: 21065


_______________________
PARKER AJ
Acting Judge of the High Court


Appearances

Counsel for the Plaintiff: Adv Eugene Benade
Instructed by: DSC Attorneys
Mr Daneil Botha

For the Defendant : Ms Claireese Thomas
RAF State Attorney

Date of Hearing: 6 February 2025
Date of Judgment: 19 February 2025

This judgment was handed down electronically by circulation to the parties’
representatives by email.