IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 9777/2018
In the matter between
ADV BRENDON BRAUN NO
CURATOR AD LITEM TO TATENDA EDWIN TIRIPANO
PLAINTIFF
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA
DEFENDANT
JUDGMENT
Date of scheduled hearing: 17 March 2025
Date of judgment: 26 March 2025
BHOOPCHAND AJ:
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1. The Plaintiff is the Curator Ad Litem to the Patient, Tatenda Edwin Tiripano, who
is 40 years and 11 months old. The Patient fell after being pushed through the open
doors of a train at Stikland Station, Western Cape Province , on 15 September 2017 .
The Defendant, the Passenger Rail Agency ( ‘PRASA ’), provides rail passenger
services in the province. The Defendant has accepted eighty percent liability for the
Patient ’s proven damages. This judgment deals with the quantification of the claim.
The parties agreed to submit their respective expert reports , supported by affidavits ,
as per Rule 38(2) . The Court determined the matter based on the papers and the
written arguments provided by Counsel for the parties under Rule 39(20).
2. The P atient struck his head on the station platform as he fell and suffered a
traumatic brain injury, an occipital skull fracture , and haemorrhagic brain contusions in
the frontal lobes and left temporal lobes. The Pla intiff ha d claimed the following
damages .
2.1. Past hospital and medical expenses: R100 000
2.2. Future medical and related expenses: R 674 740
2.3. Loss of earnings: R 7 073 0 00
2.4. General Damages: R 2 500 000
3. The Plaintiff appointed a Neurosurgeon, a Psychiatrist, a Plastic and
Reconstructive Surgeon, an Ophthalmologist, a Clinical Psychologist, an Occupational
Therapist, an Industrial Psychologist, and an Actuary. The Defendant appointed an
Orthopaedic Surgeon, an Occupational Therapist, an Industrial Psychologist, and an
Actuary. The Industrial Psychologists compiled a joint minute.
4. Neurosurgeon Dr. Z. Domingo assessed the Patient on August 3, 2020. He
reviewed the hospital's clinical records. The Patient ’s brain injury was assessed on
admission to the hospital as a severe traumatic brain injury. A traumatic brain injury
(TBI) is damage to the brain caused by a sudden blow, bump, or jolt to the head o r by
something that penetrates the skull, like a sharp object. Think of it as the brain getting
shaken up or bruised inside the skull. These injuries can range from mild (like a
concussion, where someone might feel dazed or have a headache) to severe (caus ing
long-term changes in thinking, movement, or emotions). They often result from
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accidents , such as falls, car crashes, or sports -related impacts . It’s important to take
head injuries seriously, as the brain is incredibly delicate, and even what seems lik e a
mild injury can have lasting effects if not treated properly .
5. The CT brain scan done on admission to the hospital after the injury revealed
multiple pathologies. The skull fracture line extended from the occipital area into the
foramen magnum (the hol e at the posterior part or base of the skull where the spine
and blood vessels enter) , and occipital condyle. The condyles are bony structures on
either side of the foramen magnum . They articulate with the first vertebra of the spine
and thus facilitate movement s of the head on the neck.
6. There were bilateral frontal lobe contusions . The latter means that there was
bruising of the tissue situated in the anterior aspect of the brain. The frontal lobes are
responsible for higher -level functioning in humans . These include , firstly, executive
functioning, like planning, decision -making, problem -solving, and reasoning. The
second is emotional regulation , which enables us to manage and express our
emotions appropriately. The third is behaviour control, which modu lates impulse
behaviour and maintains focus. The fourth is motor function , which controls voluntary
muscle movements. The fifth relates to language and speech production, and the sixth
to personality. Many aspects of personality and social behaviour are sh aped by the
frontal lobes. The frontal lobes are often referred to as the command centre of the
brain as they coordinate so many critical functions.
7. The Patient also suffered left temporal lobe haemorrhagic contusions, meaning
that there was bruising of the brain tissue situated along the sides of the brain, just
above the temples and the ears. Its main function is auditory processing, i.e. how we
hear sounds. It has other functions , such as long -term memory, the ability to
understand spoken and written language, emotional responses, and the capacity to
process what we see and subsequently recognise .
8. The scan also revealed a right hemispheric subdural hematoma with extension
into the falx cerebri and tentorium cerebelli. The brain is covered in three layers,
namely the pia mater, the arachnoid mater, and the dura mater , from the outer to the
inner. The pia mater hugs the surface of the brain and the spinal cord. ‘Mater ’ is the
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Latin word for ‘mother ,’ a fitting metaphor th at relates to their protection and nurturing
of the soft, gelatinous -like brain tissue lying beneath them. There are potential spaces
between the dura and arachnoid maters as well as between the arachnoid and pia
maters. Cerebrospinal fluid in these spaces cushions the brain tissue against
movement and protects it from bruising against the tough skull bones. These spaces
can fill with excessive cerebrospinal fluid or blood in brain injuries. The blood collection
can expand against the soft brain tissue and displace it . The soft gelatinous tissue of
the brain needs to be kept in place. Think of the falx cerebri as a vertical wall that runs
down the centre of the brain, separating the left and right halves or hemispheres. The
tentorium cerebelli runs horizont ally, separating the upper cerebrum from the lower
part of the brain, known as the cerebellum . The se structures or partitions are made up
of a tough layer of dura mater . They can be described as the scaffolding that keeps
the different parts of the brain f rom damaging each other as the head moves. The right
hemispheric subdural haematoma means that the impact of the Plaintiff ’s head injury
caused internal bleeding in the brain, and blood seeped into the space between the
dura mater and the arachnoid mater. The scans also showed small left frontal and
temporal subdural haematomas.
9. Finally, the scan revealed a subarachnoid haemorrhage in the interpeduncular
cistern, the sylvian cistern and within the sulcal markings. A subarachnoid
haemmorhage is bleeding into the space between the arachnoid mater and the pia
mater. The cisterns of the brain are like little pockets or reservoirs within the space
surrounding the brain, where cerebrospinal fluid (CSF) gathers. CSF is the liquid that
cushions and protects the brain and spinal cord. These cisterns act as storage areas
for this fluid, ensuring the brain is well -supported and shielded . They are protective
fluid-filled cushions in specific parts of the brain and act as a source of nutrients for
the brain as well. The interpeduncular cistern is situated near the brainstem, and the
Sylvian cistern is a fluid -filled space in the brain located around the Sylvian fissure,
which separates the frontal and parietal lobes from the temporal lobe . The s ulci, or
sulcal markings, referred to in the scan, are grooves or troughs visible on the brain's
surface, giving it its characteristic wrinkled appearance. The elevated areas between
the sulci are known as the gyri. This design provides the brain with a la rger surface
area, thus packing more brain into a confined space of the skull.
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10. In summary, the Patient suffered extensive injury to his brain involving both the
right and left hemispheres. A computed tomography (CT) brain scan identifies
structural brain damage and its sequelae, such as bleeding, swelling, restricted blood
flow, and tissue damage. CT scan s are usually performed routinely following brain
injuries. It is ordered following the clinical assessment of the patient and serves as an
essential mar ker of the severity of brain injuries. An understanding of the clinical
assessment on admission and the results of the CT scan is crucial in the legal
assessment of brain injuries.
11. Dr. Domingo categorised the brain injury as being moderate to severe in extent.
The Patient lost consciousness after falling and had no recollection of subsequent
events until about three weeks after the accident. The Patient required surgical
intervention three days after admission to the hospital to reduce the pressure in side
his skull. The surgical procedure performed required the removal of a part of the left
and right frontal skull bones to allow space for the underlying swelling brain to expand.
The bone flap removed was subsequently replaced. The Patient underwent
rehabilitation before being discharged home.
12. The review of the clinical notes relating to the ongoing medical assessment of
the Patient ’s brain injury on admission and during his hospitalisation was consistent
with the severity of the Patient ’s brain inj ury. The clinical findings shall not be examined
in detail for the purposes of this judgment. Dr Domingo ’s examination did not reveal
any focal neurological deficit. The doctor concluded that the Patient had made a good
physical recovery from the brain inj ury. His opinion on the mental recovery was less
optimistic.
13. The Patient also developed bilateral haemopneumothoraces, which required
drainage. This injury was not expected to have any long-term sequelae.
14. Once at home, the Patient experienced headache s. Family members noted that
he was aggressive and confused, requiring assistance with his daily activities. His
condition gradually improved and stabilised when Dr Domingo assessed him. The
Patient was divorced two years after the accident. The divorce oc curred , in part , due
to his behavioural problems following the accident.
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15. The Patient complained of poor vision in his left eye. He is conscious of the
surgical scar that runs across his scalp from ear to ear. He tends to be emotionally
labile, and angers easily but is neither verbally nor physically aggressive. He suffered
his first generalised seizure in 2019. He commenced anti -convulsant medication. He
has mild intermittent headaches , which respond to simple analgesia. The Patient
manages his dail y activities and has no problems with routine household chores.
16. The psychiatric evaluation revealed that the Patient suffered from mood swings,
memory difficulties, stress, and depression. Dr Le Fevre diagnosed the Patient with a
personality change du e to traumatic brain injury. Ms Durra, the clinical Psychologist
diagnosed with post -traumatic stress disorder (‘PTSD ’), and Major Depressive
Disorder. Ms . Durra referred to symptoms of the neurocognitive disorder but correctly
did not venture into provid ing a neuropsychological diagnosis. She, like all of the other
experts recognised the need for a neuropsychological assessment of the Patient. It
was not done.
17. The Plaintiff's appointed Occupational Therapist considered that the Patient
would, from a p hysical perspective, be able to comply with the demands of his former
sedentary job . She, however , expressed insecurity about the Patient ’s emotional
cognitive, and behavioural difficulties resulting from the brain injury . She wondered
whether it could hav e a negative impact on his vocational abilities. The Defendant -
appointed Occupational Therapist expressed the view that the Patient would be able
to work in his field of training, and accommodations in the work environment were not
foreseen. The scarring on the Patient ’s head may cause minor loss of earning capacity.
18. The Defendant appointed Professor Vlok, who is an Orthopaedic Surgeon. The
Plaintiff did not suffer any injury that required his expertise. The only link that Pro fessor
Vlok had to this case was that he was the Consultant in the ward where the Plaintiff
was treated. He does not take the matter any further , and the appropriateness of
appointing this expert is uncertain.
19. Dr. Cronwright, the Plastic and Reconstructive Surgeon, directed attention to
the patient ’s prominent, elliptical surgical scar , extending from ear to ear with a curve
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towards the forehead. The scarring could attract unwanted attention in the job sector
the Patient worked in around the t ime of the accident. Dr. Cronwright did not
recommend scar revision, as it would be difficult to achieve significant and meaningful
improvement . Further surgery was expected to improve its appearance by 30 -40%.
20. Dr Perrot, the Ophthalmologist, assessed the Patient on 23 November 2022.
The examination showed a markedly reduced visual acuity in the left eye. Dr Perro t
surmised that the blunt force to the Patient ’s head disrupted the normal anatomy of
the central retina or macula of the left eye. The Patient was left with a traumatic
maculopathy with a secondary lamella macular hole. Dr Perrot state d that the loss of
vision in one eye ha d a significant psychological impact on the Patient .
21. As for the experts appointed, the Court notes that despite recommendations
that the Plaintiff appoint a Neuropsychologist or a Clinical Psychologist with a special
interest in Neuropsychology to provide objective testing and assessment of any
cognitive fall out resulting from the accident, he did not. The Court thus has no objective
evidence that the Patient suffered any cognitive fallout. At best for the Plaintiff, Dr .
Domingo noted that the Patient reported no cognitive problems on specific
questioning . Still, given the severity of the brain injury, he , like all the other experts,
expected neurocognitive deficits to follow this type of brain injury . The clinical
psychologist conducted an elementary neuropsychological assessment, which does
not assist the Cou rt in determining the neuro psychological sequelae in this matter. The
Court needed guidance on whether there were long-term effects from the injuries that
occurred in various parts of the brain, as identified in the opening paragraphs of this
judgment.
PLAINTIFF ’S CLAIMS
FUTURE MEDICAL EXPENSES
22. Dr Domingo referred to the single seizure the P atient suffered in 2019. The
Patient was commenced on anti -convulsant medication after the seizure. At the time
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of Dr Domingo ’s assessment of the Patient in August 2020, the Patient was no longer
on anti -convulsant medication. Dr Domingo believed that the Patient required lifelong
medication for post -traumatic seizures. The most recent report in the Cou rt file was
that of the Plaintiff appointed Industrial Psychologist . Her report of October 2022
confirmed that the Patient had just one seizure in 2018. He told the Occupational
Therapist that the medication given to him for the seizure was a once -off pres cription,
and he no longer takes the medicine. There is no indication that the Patient was tested
for seizures or had any further assessment after the 2018 seizure. Dr Domingo
suggested that the Patient receive R450 000 for lifelong treatment of his post-
traumatic seizures (of which he suffered just one). The written argument submitted on
behalf of the Plaintiff omitted this item from the claim for past medical expenses. In the
Plaintiff ’s undated supplementary submissions , an attempt was made to include th is
item under this head of damages. The Defendant submitted that the late inclusion of
this item prejudiced it . Even if the Court were to consider this item, the evidence is that
the Patient suffered just one seizure and had stopped his medication shortly after
seeing a doctor for it. There is no evidence that the Patient was assessed or tested for
his seizures. Expenses must be reasonable and necessary. The Court declines to
make any award for this item.
23. Dr Domingo also recommended R5000 for simple analgesia over the Patient ’s
lifetime. There is no evidence about the Patient ’s life expectancy.1 Future medical
expenses extending over a patient ’s lifetime should, of necessity, have evidence
relating to this aspect. As the Plaintiff is receiving this amount now, a 15% deduction
must apply , considering that the amount is intended to cover the Patient over his
lifetime. The Court awards R4250 for this item.
24. The Defendant -appointed Occupational Therapist recomme nded that the
Patient receive 4-6 hours of occupational therapy to address education related to pain
management and the implementation of reasonable accommodations in the
workplace, should the Patient obtain employment again. The expert suggested that
the therapist should be compensated for her traveling time at a rate of R650 per hour.
1 The Court had to search for this evidence , which referred to tangentially in the Defendant -
appointed actuarial report where the comment is made that “We have assumed that the
Claimant ’s life expectancy is normal. ”
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The expert does not explain why a therapist should be paid for her traveling time. The
Actuary costed these items at R8750. The expert states that the Patient occasionally
takes analgesic medication for headaches. What type of education would a patient
require to take a Panado? The Occupational Therapist did not justify this expense. The
expert also stated that on testing, the Patient did not present with any limitations for
tasks requiring sitting, standing, walking, climbing stairs, crouching, squatting, and
kneeling. The expert fails to explain why the Patient should require the implementation
of reasonable accommodations in the workplace. The Court declines to make any
award for this item.
25. The Clinical Psychologist recommended twelve sessions of Eye Movement
Desensitisation and Reprocessing therapy (EMDR) to reduce the symptoms of PTSD.
She also recommended weekly supp ortive psychotherapy followed by psychotherapy
on a need basis. The actuary costed this item at R80 680. The Court awards this
amount . As the Patient is expected to avail himself of the treatment immediately, no
contingency deduction would be applied to th is item.
26. Dr Perot recommended that R80 000-R100 000 be ‘apportioned ’ to cover
‘possible ’ macular hole surgery if the partial defect in the Patient ’s eye progresses to
a full -thickness hole. The Actuary costed this item at R72 530. Dr. Perot provides no
indication as to when the partial defect is expected to become full -thickness . The Court
has considered the nature of the recommendation , and as there is some doubt as to
whether the Patient ’s condition would deteriorate and he would require surgery, a
contingency deduction of 20% is appropriate on the cost of this item. The Court awards
a rounded -off figure of R58 000 for this item.
27. Dr Cronwright ’s recommendation for the future management of the scalp scar
is even more problematic. The Plastic and Reconstructive expert considered how a
scar revision might be done if the patient desires the surgery. Dr Cronwright does not
advise the su rgery , as it is difficult to achieve significant , meaningful improvement. The
expert stated that he would only be hopeful of a 30 -40% improvement in the scar's
appearance . The Actuary costed this item at R62 780. The Actuary noted that they had
allowed for this cost, even though the expert had advised against it . They deferred to
the attorney (about whether it would be pursued) . Considering the expert ’s reluctance
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to advise surgery for scar revision and the poor prospects of obtaining improve ment,
the Court declines to make an award for this item.
28. Plaintiff argued that as Defendant did not file an actuarial calculation in
opposition to Plaintiff's instructed actuarial calculation, the future medical costs , as
detailed and calculated, should b e accepted as uncontested. The Plaintiff suggested
that the Court award a revised amount of R679 740 under this head of damages. It is
apparent from the motivation provided on behalf of the Plaintiff that his legal
representatives did not thoroughly review the reports they submitted , nor have they
ensured that the claims are properly supported by evidence. The Defendant fares no
better. It has also accepted the costs of the interventions suggested by the Plaintiff -
appointed experts without evaluating the co ntext wherein the recommendations were
made. Where the Defendant suggested contingenc y deductions, they bore the
hallmark of sheer guesswork. In the premises, the Court awards R142 930 for future
medical expenses.
GENERAL DAMAGES
29. General damages are awarded as compensation for non-financial losses or
harm that cannot be easily quantified . It includes pain and suffering, loss of amenities
of life, and disfigurement . Each case has to be evaluated under these headings. Pain
and suffer ing encompass both physical and emotional distress . Loss of amenities
pertains to the reduction in the quality or enjoyment of life , and disfigurement includes
permanent scarring or physical changes flowing from the injuries.
30. There are usually two phases to injury assessment for general damages; the
acute phase refers to the period from the time the injury is sustained to the time the
injury stabilises or its effects disappear . The chronic phase refers to the ongoing
symptoms and sequelae of the injuries , which may sometimes endure for the lifetime
of the injured person. The assessment of general damages has introduced terms such
as maximum medical improvement and percentage of whole -body impairment to
determine whether general damages qualify for compens ation . Serious injuries usually
elicit the most physical pain and suffering and loss of life ’s amenities in the acute
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phase . The outcomes in the chronic or ongoing phase of injuries may be variable. A
serious injury with a good outcome may cause little pai n, suffering , and loss of
amenities , and the inverse may also apply. A mild injury may evolve into long-term
difficulties as it progresses , e.g., injuries involving joints.
31. In the context of a brain injury , symptoms such as headaches, nausea,
vomiting, m emory loss, and dizziness typically peak soon after the injury occurs and
then either resolve completely or persist at a reduced frequency once the injury
stabilises . Each case must be evaluated for its effects on physical and emotional pain,
suffering , and disfigurement . Whilst awards for general damages may be useful guides
in determining general damages, it is the actual symptoms and effects of injuries on
the injured person that should determine the award in each case.
32. The Plaintiff submitted that t he Court make an award of R1 500 000 for general
damages. The Defendant argued for an award of R 450 000.
33. The P atient required hospitalisation for a prolonged period. He has no
recollection of the three weeks after the incident. He suffered blurred vision in his left
eye and headaches . He ha d to acquire and wear spectacles because of the injury to
his eye . His major problem related to his mental functioning and the psychological
symptoms he experienced . He struggled to control his mood and temper. He strug gled
with insomnia. The Patient exhibited aggressive behaviour that led partially to hi s
divorce. He was separated from his young child and had to find alternate
accommoda tion. He tends to anger easily and is easily provoked by minor things . The
headaches have decreased in frequency, requiring occasional simple pain medication .
He still struggles to contain his emotions . He experiences both anxiety and depression
but takes no medication . The blurred vision in his left eye is permanent , and so is the
scalp disfigurement.
34. What is apparent in this case is that the P atient ’s main problems relate to his
psychological functioning and the scar on his head. The extent of his pain and suffering
and disfigurement does not justify an award of R1 500 000 for general damages.
Neither does the Patient qualify for a meagre award of R450 000. This case illustrates
the principle that a serious brain injury may not attract a high award of general
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damages . The inverse may be true in certain cases . None o f the cases submitted by
the parties comes close to the injury and outcomes prevalent in this matter.
35. The Court considered the extent of the initial brain injury, the eye injury, and the
scalp scar in assessing the award it should make for general damages in this case.
Although the Court has alluded to the absence of a neuropsychological report , it has
considered the general neuropsychological sequelae as a part of the award for general
damages. These would include t he effects of memory, attention, concentration,
executive , personality , and emotional functioning as they would have affected the
Patient during the acute and chronic phases of his accident -acquired injuries. Some
of these higher -level functioning deficits were sourced from the collateral history and
information obtained by the experts. The Court considers an award of R1 million to be
a fair and just award in the circumstances.
LOSS OF EARNINGS
36. The Patient completed a bachelor's degree in Tourism and Hospitality
Management in 2008. He was employed as a sales and marketing coordinator for a
hotel group from 2015 until the accident occurred. His role was primarily administrative
and office -based . He returned to working half days in December 2017 and then to full
days. He was retrenched in December 2018. He obtained a job as a waiter. His first
contract lasted two months , and the subsequent one, five months. In March 2022, he
began working at Kingdom Blue Funerals .
37. Dr. G Loubser (‘Loubser ’)and Mr. D Malherbe (‘Malherbe ’), respective Industrial
Psychologists appointed by the Plaintiff and Defendant, compiled a joint report on 31
July 2023. Their Rule 36(9)(b) reports were compiled two years apart , with Loubser
providing the later assessment. The Patient was employed as a Sales and Marketing
Coordinator for Radisson Hotels. Loubser considered the job to be at a skilled and
academically qualified occupational level. Malherbe placed the position at the semi -
skille d level. They agreed that the P atient could have advanced his career further if he
was not injured. Their earnings projections are comparable up until the average career
ceiling at age 45. Loubser then suggested that the Patient would have earned in line
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and attained earnings of R645 195 per annum by age 45 . Malherbe postulated that
the Patient would have attained a skilled job level at age 45 , with earnings
corresponding to the C1 Paterson job grade. He suggested that the related earnings
were to be source d from Robert Koch ’s 2023 Quantum yearbook.
38. For the injured scenario, Loubser firstly acknowledge d that the Patient ’s
retrenchment was unrelated to the accident. She then suggested that the sequelae of
the accident -related injuries played a role in the Patient ’s inability to secure another
job. Malherbe stated that the periods of unemployment experienced by the Patient
could not be fully attributed to the accident. He referred to the COVID -19 pandemic
and its effect on the tourism and hospitality indust ry. Loubser predicted, in line with the
other expert opinions , that the Patient would not be able to pursue a position that
required him to function at a higher level as he did in the uninjured state. She
postulated that the Patient may be promoted to the position of a sales supervisor
subject to psychiatric and psychological assessments. Malherbe capitulated from his
initial opinion and agree d that the sequelae of the accident would impact the Patient ’s
career . It was likely that the Patient would not attain the skilled levels of work he would
have enjoyed in the uninjured state. He will remain on a semi -skilled level for the
remainder of his working career.
39. It is perturbing for a Court to find that two experts who are presumably schooled
in the s ame discipline and require registration with their professional regulatory body
to practice their profession can classify a job so differently. The Patient obtained a
tertiary qualification and had plans for academic improvement. Yet , one expert
consider s the same job to be semi -skilled, whereas the other considers it a skilled
placement available to professionally qualified individuals . Fortunately, their
differences were finally narrowed to this issue alone.
40. The Plaintiff filed the final actuarial calc ulation dated 27 February 2025. The
Actuary calculated the capital value of the loss of earnings predicted by the Industrial
Psychologists as follows:
DR LOUBSER
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Uninjured earnings Injured earnings Loss of earnings
PAST R2 092 900 R414 700 R1 678 200
FUTURE R8 859 200 R1 934 400 R6 924 800
TOTAL LOSS R8 603 000
MR MALHERBE
PAST R1 971 200 R414 700 R1 557 000
FUTURE R7 089 100 R1 934 400 R5 154 700
TOTAL LOSS R6 711 700
41. What is apparent from the above table is that the past and future earnings in
the injured state yield the same monetary value. The calculation of future uninjured
earnings yields a material difference , aligning with the expert ’s classification of the
patient ’s employment level. The difference in past earnings is minimal. The Court shall
use a rounded -off figure of R2 mil lion as past uninjured earnings .
42. Malherbe predicted that the Patient would attain a skilled level of employment
at Paterson C1 job grade at the peak of his career. Although Malherbe acknowledges
that the Patient would have qualified for a skilled (Paterson C band) placement after
graduating with a commerce degree, he regarded the role the Patient held when the
accident occurred as ‘likely still on a semi -skilled level ’. The Patient earned
approximately R16 847 per month , cost-to-company salary at the time the accident
occurred. Loubser provides a fairer and more compelling assessment of the Patient ’s
true uninjured potential. She recognised the patient ’s educational achieveme nt, i.e.,
the commerce degree, and his intention to further his tertiary qualifications by enrolling
in an MBA. She considered that the Patient held skilled positions . Loubser projected
the Patient ’s career advancement along those lines. Malherbe ’s project ions are too
pessimistic for a person with a tertiary qualification. The Court has no hesitation in
accepting Loubser ’s career predictions for the future uninjured state . It shall use the
monetary translation of the projection to determine the total loss of earnings.
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43. For past uninjured earnings of R2 million , the Court shall apply a contingency
deduction of 5% . For past injured earnings, no deduction shall apply as there were
periods of unemployment that could not be attributed to the Patient ’s accident -related
sequelae. The Patient is 40 years old. He has 25 years to retirement . The normal
contingency deduction for future uninjured earnings is 15% . The question is whether
additi onal percentage points should be added to the deduction to cater to the
possibility that the Patient would not have attained the more optimistic career
projection predicted by Loubser. The Patient has changed jobs and countries in pursuit
of employment , even venturing to Dubai for a job, whilst uninjured. The Court believes
that a further 10% deduction would cater to this type of unpredictability. The future
injured earnings should attract no more than the normal contingency deduction . It is
predicated upon a customised projection , and it would be inequitable to apply a higher
deduction, considering that the Patient has secured what appears to be a steady job
in the funeral sector.
44. The following table reflects the capital values used b y the Court and the
contingency deductions applied.
UNINJURED
EARNINGS INJURED
EARNINGS LOSS OF
EARNINGS
PAST R2 000 000 R414 700
CONTINGENCY
DEDUCTION 5% 0%
R1 900 000 R414 700 R1 485 300
FUTURE R8 859 200 R1 934 400
CONTINGENCY
DEDUCTION 25% 15%
R6 644 400 R1644 240 R5 000 160
TOTAL LOSS
OF EARNINGS R6 485 460
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45. The application of the appropriate contingencies to the actuarial calculation of
earnings in this matter emphasises certain principles. The first is that each case should
be determined by its peculiar facts. There are normal deductions that apply to past
and future earnings in the uninjured state for adults . These deductions are 5% for past
earnings and 15% for future earnings. For a younger adult, such as a 25 -year-old with
approximately 40 years until retirement, a 20% deduction would be appropriate and
consistent with a 0.5% annual deduction.2 Contingency deductions are applied to
earnings , not to the loss of earning s. In any given case , there are usually four
deductions that need to be applied, and each should be considered on its merits. There
are instances , such as in casu , where a higher -than-normal deduction is warranted for
future un injured earnings if the facts require it. The contingency deduction thus applied
for future uninjured earnings may be higher than for future injured earnings,
emphasising the need to consider the reasoning behind each calculation. Regarding
injured earnings, no deductions are necessary for past injuries if they , as is usually the
case, reflect actual earnings. There is a tendency to apply a higher -than-normal
deduction to future injured earnings. The facts of a particular case should determine
whether that is appropriate or not. If the career projection proposed is customised to
the Plaintiff ’s injured condition, it will make no sense to apply a higher -than-normal
deduction. Overall, the Court still maintains a discretion in applying or not applying
contingencies .
46. Both Counsel mistook the second actuarial calculation as the combined
calculation of capital values , whereas the Actuary clearly labelled it as the calculation
based upon the Malherbe projection. The Plaintiff ’s Counsel did not apply any
contingency deduct ion to future injured earnings. The Defendant ’s Counsel spoke of
applying contingencies to past and future loss, and his arithmetic was out by R 2
million. The Court finds no joy in raising th ese aspect s. Ultimately, it must ensure an
award that is fair and equitable to the Patient. Nothing further needs to be said about
the submissions made by Counsel under this head of damages.
2 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19; 2006 (5) SA 583 (SCA) (20 March
2006) at para 9
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47. The Court then awards R 142 930 for future medical expenses, R1 million for
general damages, and R6 485 460 for loss of earnings. The total award is, therefore,
R7 628 390. Once the twenty percent apportionment is deducted, the amount to be
awarded to the Plaintiff is R6,102,712 . The Plaintiff mistakenly , among a series of
errors, relied on the actuaria l calculation based on Malherbe ’s career projections.
Coincidentally, the award sought by the Plaintiff, and fortuitously for the Plaintiff ’s
Counsel, the computation of the figures as performed by the Court comes to a similar
amount, give or take R40,000 .
48. The Plaintiff submitted that the Defendant should pay the plaintiff ’s costs on the
B scale. The Court assumes that Plaintiff seeks its party and party costs and Counsel ’s
fees on the B scale. The Court shall allow the Plaintiff ’s party and party costs, but
Counsel ’s fees on the A scale. This case was of a complex nature, but the manner in
which it was handled does not justify awarding Counsel ’s fees above the A scale. The
costs relating to the Plaintiff ’s supplementary submissions, the note, and the
amendments to the orders sought are excluded from the Plaintiff ’s costs. The following
order shall reflect these findings .
ORDER
1. The Defendant shall pay to the Plain tiff through the Plaintiff ’s attorney, the
sum of R6,102,712 (six million , one hundred and two thousand , and seven
hundred and twelve rand) in full and final settlement of the Patient ’s claim
against it. As well as any costs incurred in obtaining the capital amount,
2. The Defendant shall pay the Plaintiff ’s party and party costs and Counsel ’s
taxed or agreed fees on the A scale .
3. The Defendant shall pay the costs of the appointment of a Curator Ad Litem
and, if deemed necessary, the costs of a Curator Bonis to protect the capital
sum awarded,
4. The Defendant shall pay the reasonable and necessary fees and
disbursements of the following expert witnesses :
4.1 Dr Z Domingo ,
4.2 Dr K Le Fevre ,