IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 6158/2018

In the matter between:

BIENVENU MBOYO-IYUMA Plaintiff

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant

Judgment Reserved: 15 April 2025

Judgment Delivered: 20 August 2025


JUDGMENT


HOLDERNESS J

A. INTRODUCTION

[1] On 26 August 2017, at Koeberg station, Western Cape, the plaintiff, Bienvenu
Mboyo-Iyuma (the plaintiff or Mr. Mboyo -Iyuma), an adult male former truck driver,
born on 16 November 1971, was attacked by unknown assailants on a train operated

by the Defendant. He was pushed from the train, through the open doors thereof (the
incident).

[2] As a result of the incident, the plaintiff sustained an above -elbow amputation
of the left arm and soft tissue injury to the lumbar spine.

B. THE MERITS SETTLEMENT

[3] The plaintiff and the defendant, the Passenger Rail Agency of South Africa
(PRASA or the defendant) , have settled the issues of causal negligence and causal
contributory negligence, on the basis that the defendant is to pay 50% (fifty per cent)
of the proven or agreed damages arising out of the incident.

[4] During the first day of the trial, the parties settled general damage s in the
amount of R1,500,000.

C. THE QUANTUM EXPERT REPORTS

[5] The plaintiff appointed as experts orthopaedic surgeons, Dr J Sagor and Dr B
Bernstein, an orthotist and prosthetist, Dr E Rossouw, an occupational therapist, M
Le Roux, an industrial psychologist, Ms K Kotze, and Munro Consulting (actuaries).

[6] The Defendant obtained the expert reports of orthopaedic surgeon, Prof GJ
Vlok, orthotist and prosthetist , Mr J Brand , occupational therapist , Ms J Andrew s,
industrial psychologist, DG Malherbe and Fero Actuarial Consulting (actuaries).

[7] The parties obtained the following joint expert minutes:

7.1 Dr J Sagor and Prof GJ Vlok (orthopaedic surgeons) – dated 22 July
2024 and 3 February 2025.
7.2 Mr E Rossouw and Mr J Brand (orthotists and prosthetists) – dated 3
February 2025.
7.3 Ms M Le Roux and Ms J Andrews (occupational therapists) – dated 22
January 2025.

7.4 Ms K Kotze and Mr D Malherbe (industrial psychologists) – dated 30
January 2025.

[8] As neither party has repudiated any of the joint expert minutes, the principles
set out in Bee v Road Accident Fund 1 apply to the agreements outlined in the joint
minutes, that is, that facts agreed by experts in joint minutes are binding unless
timeously and clearly repudiated; they carry the same weight as common -cause
facts in pleadings or pre-trial agreements.

D. THE ISSUES FOR ADJUDICATION

[9] The issues for adjudication are:

9.1 Past medical expenses.
9.2 Future medical expenses.
9.3 Past and future loss of earnings.
9.4 Costs and the scale of counsel’s fees.

E. EVIDENCE BY EXPERT WITNESSES AND THE RULE 38(2)
APPLICATION

[10] The plaintiff led the oral evidence of Mr Rossouw, Ms Le Roux, Ms Kotze and
Mr Boshoff, who confirmed the contents of their reports and joint minutes.

[11] The plaintiff applied under Rule 38(2) for the reports of Dr Sagor and Prof
Vlok to be admitted in to evidence. The application was unopposed and was duly
granted.

[12] The Defendant called Mr Brand and Ms Andrews as expert witnesses.

[13] I now turn to address the heads of damages.


1 2018 (4) SA 366 (SCA) (BEE) at paras 64 to 66.

F. LOSS OF EARNINGS

[14] Ms Kotze (KK), the plaintiff’s appointed industrial psychologist (IP),
concerning the joint minute she concluded with the defendant’s appointed IP, Mr D
Malherbe (DM), noted the following points of agreement:

14.1 With regard to the claimant’s unaffected earnings, at the time of the
incident, Mr Mboyo-lyuma was a 45 -year-old individual, in possession
of a Diplôme d'Etat (DRC), equivalent to a South African Grade 12
level of education. His former work roles include that of general worker,
construction worker, artisan's assistant and truck driver.

14.2 In October 2012, he commenced working at Driver Excellence as a
Code 14 Driver . He was employed in this role at the time of the
incident.

14.3 But for the accident, Mr Mboyo-lyuma would in all probability have
been able to continue to function as a Code 14 Driver.

14.4 For purposes of the quantification, Mr . Mboyo-lyuma would probably
have continued to earn his actual re muneration in 2017 , with straight-
line increases to remuneration associated with the earnings for a Code
14 driver at Driver Excellence. For 2024, i.e. R78 -60 p/hour (45 hours
p/week), equating to R3 537-00 p/week and R183 782-52 p/annum.2

14.5 This would probably have been followed by earnings inflatio n up to
retirement age at 65 years.

[15] Where Ms Kotze (KK) and Mr Malherbe (DGM) parted ways was that Mr
Malherbe observed that whereas the employer certificate relied upon quotes the
hourly rate, the claimant may have earned less at times as a Code 10 driver or due

2 These earnings are commensurate with the Minimum Wage for Code 14 Drivers. As per the
attached NBCRFLI Circular to Industry, this is presented as R3 322 -06 and thus R172 614-23
p/annum.

to shorter working hours as were evident in his pre -accident salary advices. The
plaintiff’s annual earnings may therefore have been reduced as a result of working
on different contracts . T his indeed may well have been so, and will b e dealt with
through a contingency deduction on his premorbid earnings.

[16] Concerning the plaintiff’s affected or post -accident earnings, KK and DM
agree/note that:

16.1 Mr. Mboyo-lyuma was unable to resume his work role as a truck driver
or similar, or any other work roles in line with his level of education and
job skills in the open labour market at the time of the incident.

16.2 He is h owever, reportedly assisting his s pouse, who is an informal
trader, selling fresh produce from a temporary stall on the premises
where they reside.

16.3 Drs Vlok and Sagor , in their joint minute, agree that Mr . Mboyo-Iyuma
is limited to doing activities needing one arm. He cannot return to work
as a truck driver, but could be trained to do alternative clerical or
supervisory work, should the opportunity arise.

16.4 However, noting Mr . Mboyo-lyuma's age (52 years) and his previous
work roles of a basic -skilled nature and his lack o f administrative or
supervisory skills, it seems impracticable that he could be trained in
such capacities as the open labour market , or will be in a position to
compete with able bodied job applicants who are already trained and
experienced in in the open labour market.

16.5 Ms. Andrews and Mr. Le Roux , in their joint minute, agree that while
the plaintiff’s residual physical capacity supports the ability to perform
sedentary to light physical work, involving predominantly one-handed
tasks, he is essentially considered unemployable. He is no longer
suitable for manual and driving work, including his previous role as a

truck driver. They concurred that he can continue assisting his wife in
selling fresh produce in the informal sector.

16.6 They ag reed that Mr. Mboyo-lyuma's chances of securing gainful
employment in the open labour market are almost non -existent, and
that he will probably remain unemployed for the remainder of his
working life.

[16] Mr. Malherbe’s view was that , based on t he plaintiff’s explanation of this
venture to him, it was suggested that it is his own business since 2022 , and that he
plays an active part, even though his earnings are very limited.

[17] I am not persuaded that this is so. It is clear from t he joint minute that the
plaintiff indicated that a casual employee assists twice a day to erect and dismantle
the stall and to carry produce to and from the stall, and that customers have to pack
their purchases into a carrier bag. These are all tasks whi ch the plaintiff clearly
cannot attend to with only one arm.

[18] While Mr Mboyo -lyuma should be commended for his willingness to
participate in his spouse's venture, it is clear that his participation , which is limited to
calculating customers’ purchase s and handling cash, cannot be regarded as
employment, but rather as familial support, which gives him a sense of purpose. It is,
furthermore, noted that he is not remunerated for his participation in the venture, and
the only reported benefit is that his spouse is afforded a certain time during the day
to attend to household chores, whilst he mans the stall.

[19] It is apparent from the foregoing that the plaintiff is unemployable in the open
labour market. In the circumstances, I am satisfied that for all practical purposes, Mr
Mboyo-lyuma has remained unemployed since the accident until the present, and
that a total loss of earnings ha s occurred from the date of the incident. For purposes
of the quantification of the claim, the likely pre-incident earnings should be used as a
baseline.

[20] In the Munro actuarial report dealing with loss of earnings, set forth in Exhibit
‘E’, the calculations are based on the IP joint minute , with scenario 1 representing
KK, scenario 2 representing DGM, and scenario 3 being the average between
scenarios 1 and 2.

[21] Mr Boshoff testified that the 5% applied to past earnings is the standard
contingency, and that the 10% applied to future earnings in Exhibit ‘E’ based on the
sliding scale is a conservative contingency.

[22] As Nicholas JA said in Southern Insurance Association Ltd v Bailey NO
(Bailey)3 deduction for contingencies is meant to account for the ‘vicissitudes of life’ 4.
These include:

‘[T]he 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.’

[23] The court referred to Singh v Ebrahim ,5 in which a 15 per cent contingency
deduction was approved, and PM obo TM v MEC for Health in which 20 per cent
was deducted.6

[24] It is well established in our law that t he Court has ‘a large discretion to award
what it considers right. ’7 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 t he 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

31984 (1) SA 98 (A) at 113 G-H. Bailey At 119D-H, as cited with approval in NK obo ZK at para 15.
4 Bailey at 116H-117A.
5Singh & another v Ebrahim (413/09) [2010] ZASCA 145 (26 November 2010); 2010 JDR 1431
(SCA).
6 PM obo TM v MEC at para 51.
7 Per Holmes JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614F; Bailey at p116.

conditions. The amount of any discount may vary, dependi ng upon the
circumstances of the case.8

[25] In Road Accident Fund v Kerridge 9 (‘Kerridge’) the Court noted that 5% and
15% for past and future earnings (or earning capacity), respectively, have become
accepted as 'normal contingencies'. 10 This generality notwithstanding, the
assessment remains ‘largely arbitrary ’ and must depend upon the trial Judge's
impression of the case. As pointed out by Bailey, the vicissitudes of life may be
either adverse or favourable.11

[26] I am satisfied that, taking into account the plaintiff’s age and the
circumstances of this case , the contingencies proposed by Mr. Boshoff are fair, and
that an average of the scenarios proposed by the two IP experts is appropriate. This
is calculated , after ap plying contingencies of 5% on past and 10% on future
earnings, as follows:

26.1 Scenario 1 (KK): R3,132,930.00
26.2 Scenario 2 (DGM): R2,849,085.00
26.3 Scenario 3 (Average): R2,990,960.00

[27] The past earnings as reflected in the actuarial calcula tion, is R1,183,200.
Applying a contingency deduction of 5% to this amount would yield R1,124,040. The
future uninjured earnings amount to R2,232,100. Applying a contingency deduction
of 15% to this amount would yield R1,897,285. The loss of earnings in the injured
state is accordingly R3,021,325. The court accordingly awards damages for the
plaintiff’s loss of earnings and earning capacity in the amount of R1,495,480.12

THE PROSTHESIS QUESTION


8 See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105
(A) at 114 – 5 as cited in Bailey at 116.
9 2019 (2) SA 233 (SCA) at para 30.
10 Road Accident Fund v Kerridge 2019 (2) SA 233 (SCA) at para 30; Esso Standard SA (Pty) Ltd v
Katz 1981 (1) SA 964 (A).
11 Bailey at p116.
12 R2,990,960.00 x .5 = R1,495,480.

[28] By far the most vexing and contested issue in this matter, which has been
very difficult to decide, is the issue of which prosthesis is most appropriate for the
plaintiff. The orthopaedic surgeons and OTs deferred to the orthotists and
prosthetists on which prosthetic would ultimately be best used and provide the
greatest benefit to the plaintiff.

[29] The prosthetists appointed by the plaintiff and the defendant , respectively, Mr
E Rossouw (ER) and Mr J Brand (JB) (the prosthetists) 13, both provided oral
testimony and extensive written input , which has been of great assistance to the
court. The following appear to be the only points of agreement that can be gleaned
from their joint minute dated 3 February 2025:

29.1 The selection , ap plication, fitting and costing of a prosthesis for an
individual with unique needs and expectations fall within their domain
as prosthetic specialists, and are not within the scope of other experts.

29.2 That Mr. Mboyo -Iyuma is a medically suited candidat e for both the
myo-electronic (ME) prosthesis recommended by ER and the cosmetic
prosthesis recommended by JB.

[30] In the joint minute and in his evidence, ER suggested a dual approach in
which the plaintiff is provided with both the ME and the cosmetic prosthesis (the dual
approach).

[31] Mr Bosh off calculated the costing of the dual approach, based on the
assumption that the plaintiff would use the ME until 70 years of age, and therea fter
the cosmetic prosthesis for the remainder of his life. It was contended on behalf of
the plaintiff that the dual approach would be a ‘fair and reasonable compromise ’ in
this matter.

[32] Ms Masupye argued that where the plaintiff claims future medical expenses,
the court will be guided by the principle that a plaintiff must mitigate his damages –

13 They are in fact expert orthotists and prosthetists. For the sake of brevity, I shall refer to them as the
prosthetists.

he cannot claim the most expensive treatment and expect the defendant to bear the
costs thereof.14

[33] The defendant argued that because the plaintiff would not have been able to
afford the ME but for the incident, he is not able to claim the same due to the injuries
resulting from the incident.

[34] The trite delictual principle referred to by Mr Laubscher to counter this
argument is as follows:

‘The basic principle underlying an award of damages in the Aquilian action is
that the compensation must be so assessed as to place the plaintiff, as far as
possible, in the position he would have occupied had the wrongful act causing
him injury not been committed. This is done by comparing the plaintiff’s
‘property’, here meaning a universitas or complex of leg al relations, including
rights and du ties, as it is after the commission of the wrongful act with its
projected state had the wrong not been committed.’15

[35] The defendant questioned how, in circumstances where ER testified that the
plaintiff does not understand the bene fits of a ME prosthesis and has never had the
opportunity to use it, he claims a ‘luxury he never had before the incident at the
expense of the taxpayer?’. This , of course , loses sight of the fac t that before the
incident he had both upper limbs and did not need a ME or a cosmetic prosthesis.

[36] In determining whether the plaintiff has shown that applying the delictual
principle above, I have had regard to the evidence of both ER and JB’s evidence and
the points raised for and against the ME prosthesis, both in their respective reports
and their joint minute. I shall also refer to the reports of the other experts only insofar
as they are relevant to the prosthesis question.


14 Mogano v Passenger Rail Agency of South Africa (2013/43052) [2023] ZAGPJHC 1069 (2 6
September 2023) at para 34.
15 The Quantum of Damages in Bodily and Fatal Injury Cases: 2024 revision service by Potgieter C,

Corbett MM, Gauntlett JJ, Buchanan JP , Honey DP, Corbett P , Potgieter C and Daffue J 2024.

[37] An issue which I raised with the plaintiff’s counsel was the failure to call the
plaintiff himself to give evidence to testify inter alia regarding whether he required the
ME prosthesis for his daily activities and whether he would use it, as the plaintiff
must establish as a matter of probability that this expense is reasonable and /or
necessary. The failure to call the plaintiff was never satisfactorily explained.

[38] In his report , ER stated that the intention of the prosthetic prescription in his
report is to b e in the best interest of the plaintiff concerning the best possible
functional and cosmetic restoration of his arm amputation, and is not based on a
suggested or requested budget and an alternative and compromised prosthetic
prescription will only be provided if so requested.

[39] Mr. Rossouw listed inter alia the following gains with a ME prosthesis:

39.1 During food preparation , the p laintiff could hold a piece of food with a
fork while cutting it.
39.2 He could hold a bottle or jar whilst opening it, provided it is not closed
too tightly.
39.3 He could hold a book while paging through it , or a wallet while t aking
money out of it.
39.6 He could open a door whilst carrying an object. Or hold a shopping
basket while packing groceries in the basket.

[40] Mr. Rossouw stated that the plaintiff would require both a primary and
secondary prosthesis, and that to optimise the best possible outcome and integration
with the prosthesis into activities of daily living. Denser formal training should be
provided by an occupational therapist who is trained and experienced in upper limb
prosthetic rehabilitation.

[41] The cost of a primary and secondary pr osthesis, excluding cosmetic gloves,
at the time of his report (in 2019) was R1,155,182. If the plaintiff is provided only
with a primary prosthesi s, the primary prosthesis would need replacement once
every four to five years . If provision is made for a s econdary prosthesis, the primary

every four to five years . If provision is made for a s econdary prosthesis, the primary
and secondary prosthesis would need to be replaced once every eight to ten years.

[42] The OTs deferred to the prosthetists, however there are observations in their
report which bear relevance to the prosthesis question.

[43] Ms. Andrews noted in her report dated 18 May 2024 that the plaintiff wears a
cosmetic prosthesis irregularly, due to discomfort because of its weight. The plaintiff
has developed a habit of only wearing the prosthesis when going out and is likely to
continue with this habit. The plaintiff reported that ‘he is frustrated easily and tends to
give up’. Ms. Andrews observed that learning to use a ME prosthesis is a reasonably
lengthy and time -consuming process, with ongoing use and practice to master it.
She envisioned that he may react similarly to learning to use the ME prosthesis.

[44] She e xpressed the view tha t, b ased on her assessment and input from his
wife, the plaintiff may no longer be as mentally sharp , and ultimately may be unable
to learn to use the ME prosthesis or cope with maintenance and repair requirements.

[45] Ms. Andrews q uestioned the need for a ME prosthesis , a s in her view the
functions described by ER are significantly limited for the plaintiff, and while some
may be useful, he has developed alternative ways of coping with many bilateral
activities. She noted that it will not help him tie his laces, dye his beard, wash his
back, or drive, which are the activities he reports to have difficulties with.

[46] Lastly, she noted that the plaintiff seems to be motivated to continue with the
home-based business of buying and selling vegetables , and a ME prosthesis Is
unlikely to enable better functioning within the business and may be a hindrance
rather than a help. It may also attract unwanted attention, with risk of theft, given the
higher value and electronic parts.

[47] Ms. Andrews concluded that the OT assessment indicates that given his age,
his level of independence, his habits, behaviours and future plans, the provision of a

his level of independence, his habits, behaviours and future plans, the provision of a
ME prosthesis is unlikely to improve the plaintiff ’s situation significantly and leading
him to believe it will, may be doing him a disservice or giving him false hope of
significantly improved abilities.

[48] Ms. Le Roux, the plaintiff’s OT expert, supports a ME prosthesis , as in her
view, it aligns with the plaintiff's needs and goals and has the potential to notably
enhance his functional independence and quality of life, particu larly f or bimanual
tasks, will enable him to contribute more to household and store activities.

[49] Ms. Le Roux further supported rehabilitation and prosthesis training for the
ME prosthesis by a Certified Hand Therapist (with either an OT or physiotherapist ),
and opined that allowance should be made for 20 -30 sessions at a current cost of
R950 – R1,000 per hour.

[50] In this regard , Ms. Andrews observed that Prosthetic training differs
significantly from the tendon transfer training, owing to multiple factors, of which the
most significant is the lack of sensation of movement felt in the ME hand. She noted
that the plaintiff would require a French interpreter for training, which would add
further complications . Considering his age, cognitive difficulties (as noted in her
report, as well as difficulties understanding the interpreter and his tendency to be
impatient), as well as his established abilities, Miss Andrews remains doubtful that
he will benefit from a ME prosthesis.

[51] In his report dated 25 January 2025, which he confirmed in his evidence, Mr.
Brand noted as follows:

51.1 The plaintiff us es his p rosthesis when he goes out in public but does
not use it at home.

51.2 It has been 7 years since his amputation , and he has managed to
become right-handed, does everything with his right hand and uses his
stump as support.

51.3 He would be able to control a ME prosthesis, but at this stage of his
life, it would not contribute to quality since the effort outweighs the
reward.

51.4 He has adapted to using his right hand , and if he w ere fitted with an
ME prosthesis early in his rehabilitation , it might have been a different
outcome.

51.5 Abandonment rates in upper limb prosthetic rehabilitation worldwide
are higher than 50%. Clinical reality still shows high rejection rates of
cost-intensive prosthetic devices.

51.6 His current needs are for a lightweight cosmetic Prosthesis with a
silicone cosmetic finish. It would be fair to cater for two cosmetic
prostheses replaced every 10 years, since he will only use it on certain
occasions and not full-time.

51.7 His greatest challenge in public is vulnerability, and that he does not
look like an easy target.

51.8 Due to the changes in the stump, it is normal to refit both these
prostheses once in a 10 -year cycle. He would need 2 silicone
suspension liners initially and one replaced annually. 8 hours must be
allowed per annum for routine maintenance and prosthetic socket
tweaking. The cosmetic hand and glove will be replaced during fitting.

[52] According to Mr. Brand the cost of a primary and s econdary prosthesis is
R385,007.12 each. A refit will cost R256,312 per prosthesis and skincare kit s, and
maintenance will cost R9,063 and R21,144 per annum, respectively.

[53] In the joint minute , Mr. Rossouw agreed that early fi tting of a ME prosthesis
would have been beneficial. However, he went on to say that the ME p rosthesis,
which he recommended, specifically the dynamic arm with vary speed hand,
controlled by single electrode and linear potentiometer harness pull switch, features
remarkably simple and intuitive operation.

[54] Mr. Brand did not take issue with the abandonment rate statistic of 50% ,
however, he noted that it is essential to consider that the plaintif f may fall with and

the percentage of individuals who successfully adapt to and benefit from a ME
prosthesis. In his view, it would be prudent to give the plaintiff the benefit of the
doubt.

[55] Mr. Brand’s view is that it is crucial to prioriti se the pl aintiff’s potential for
future improvements and adaptation, rather than solely relying on its current
adaptation. A ME prosthesis can offer a new dimensional functionality, which may
lead to notable improvements in his overall quality of life.

[56] In considering Mr. B rand's contention that the plaintiff's greatest challenge in
public is vulnerability and that he does not look like an easy target , Mr. R ossouw
noted that the natural-looking appearance of the ME prosthesis when used with a
skin-toned glove addresses such concern.

[57] Mr. Brand noted that the dual approach would address the plaintiff's current
needs as a relatively young and economically active individual , p roviding him with
the necessary tools to navigate various situations confidently. The combination of
functional and cosmetic prostheses would cater to his physical, emotional and social
well-being. He concluded by noting that Mr. Brand’s approach may be more suitable
for the plaintiff’s later years , a dual approach at this stage would be beneficial in
addressing his immediate and long-term needs.

[58] It is unfortunate that the plaintiff was never called to give evidence as to why
he needs the ME prosthesis to complete the tasks of daily living and whether he
would, in fact, use the arm if allowance were to be made for it. It is clear that the
plaintiff has learnt to adapt to one arm and that his sound limb has become his
dominant limb.

[59] After carefully considered the evidence of the respective experts , weighing up
the benefits and utility of the ME prosthesis against the costs thereof , and taking into
account the fact that the possibility exists that the plaintiff may indeed use the ME

account the fact that the possibility exists that the plaintiff may indeed use the ME
prosthesis, I will make provision for the primary and secondary prosthesis (combined

or dual approach)16, but intend to apply a higher contingency of 30% , because of the
factors set out above, the plaintiff’s age and the fact that he is no longer employed.

[60] The actuarial calculation by Mr. Boshof in respect of the cost of the
prostheses based on the dual or combined approach , is a total amount of
R8,778,170. The amount awarded is R3,072,360.17

[61] Regarding other medical expenses, it appears to be a common cause that Mr.
Mboyo-Iyuma will require the future medical expenses provided for by the
orthopaedic surgeons in items 1 and 2 of Annexure A. I am satisfied that these
expenses are both necessary and reasonable and will make provision, therefore, in a
total amount of R28,720.18

[62] Concerning the future medical expenses provided for by the OTs, and on a
consideration of the evidence presented in respect of items 3 to 21, and considering
that provision has been made for the ME arm, I intend to make allowance for items
3, 5, 7, 18, 20 and 21. A contingency of 15% will be ap plied to these expenses. The
total amount is R128,758.19

[63] The total amount to be awarded for future medical expenses is accordingly
R3,229,838.

[64] No evidence was presented in respect of the plaintiff’s past medical
expenses, nor were these expenses dealt with in argument by either the plaintiff or
defendant, and I accordingly do not intend to make any award under this head of
damages.

COSTS


16 As per Annexure A of the Munro report (Exhibit ‘F’)– Items 33 to 40 (Annexure A).
17 50% of R8,778,170 = R4,389,085 x .70 = R3,072,360.
18 R57,440 x 0.5 = R28,720.
19 R302,960 x .50 = R151,480 x .85 = R128,758.

[65] The plaintiff is entitled to his party and party costs. In my view, the appropriate
scale for the costs of counsel, considering the issues which fell to be determined and
the complexity of the matter, is Scale B.

ORDER

[66] The following order shall issue:

1. The defendant shall pay to the plaintiff through the plaintiff’s attorney, the
sum of R5,475,318.

2. The defendant shall pay the plaintiff’s party and party costs and counsel’s
taxed or agreed fees on the B scale.

3. The Defendant shall pay the qualifying expenses and reasonable and
necessary fees and disbursements of the following expert witnesses:

3.1 Dr J Sagor
3.2 Mr E Rossouw
3.3 Ms M Le Roux
3.4 Ms K Kotze.


___________________
M Holderness
Judge of the High Court
Western Cape Division


For the Plaintiff: Adv A Laubscher
Instructed by: Ms N Stockdale
Adendorff Attorneys

For the Defendant: Adv K Masupye

Instructed by: Ms L José
Jose Associates