SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 14590/20
In the matter between: -
DE VILLIERS, DAVID Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
DELIVERED: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e- mail and publication on CaseLines. The date and
time for hand-down is deemed to be 11h30 on 27 May 2024.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES.
DATE: 27 May 2024
- 2 -
F. BEZUIDENHOUT AJ:
INTRODUCTION
[1] This is a personal injuries action. Merits of liability were conceded by the
defendant on the morning of the hearing. This court was called upon to determine
the issue of past and future loss of income and/or income earning capacity. The
dispute regarding past medical expenses was postponed sine die . The plaintiff’s
claim for an undertaking in terms of 17(4)(a) of the Road Accident Fund Act, 56 of
1996 was however not contested.
[2] Two experts were called on behalf of the plaintiff, namely Mr Lewis Rosen, an
industrial psychologist, and Ms Michelle Doran, an occupational therapist. It
deserves mentioning that no rebutting expert reports were filed on behalf of the
defendant. The expertise and qualifications of the experts were conceded by the
defendant.
EXPERT EVIDENCE
Mr Lewis Rosen
[3] Mr Rosen rendered a written report on the 19 th of January 2022. He recorded
the following case history: -
[3.1] The plaintiff was born in Johannesburg on 27 November 1979 and he
matriculated at the end of 1998. The following year he joined AB Civils
as a junior supervisor, where he remained for about two years.
[3.2] The plaintiff was then employed at Samco Security as a technician,
wiring and programming security systems. Specifically, these included
installing IT cameras and configuring networks.
[3.3] Then, in approximately 2000, the plaintiff joined Incity Security as a
technician. He continued there for about 18 months before finding
employment at Chubb Security as a senior technician.
- 3 -
[3.4] After working at Chubb Security for a further three years, the plaintiff
began his own company, styled as Securit. He relocated to the Free
State and then to Richard’s Bay.
[3.5] The plaintiff’s stepfather then suffered a stroke and the plaintiff assisted
in the family business, styled as Samco. After a period he started his
own company, Sec-Q-Safe.
[3.6] The plaintiff started Zinto Safety and Security, a technical, guarding
and armed reaction firm. He was approached by a property company
and his business was merged to form ZSS Security. He continued in
the business as a tactical reaction manager from 2013 and he filled this
post successfully until 20 August 2019 when he was involved in a
motor vehicle accident.
[3.7] Whilst driving an Escort vehicle, another car skipped a red traffic light
and collided with the plaintiff’s vehicle. The plaintiff was taken by
ambulance to Busamed Hospital where he was admitted and treated
as an in-patient for approximately nine days.
[3.8] The plaintiff was discharged to recuperate at home, but was rushed
back to hospital owing to debilitating headaches.
[3.9] After a further week, the plaintiff was referred to Arwyp Hospital where
he was treated conservatively. In total, the plaintiff reported spending
approximately a month in hospital from the time of the accident until
being discharged.
[3.10] The plaintiff was able to return to work only in late January 2020, but
needed to be accommodated in a more sedentary post owing to his
constraints.
[3.11] As a result, another party was hired to carry out the plaintiff’s job. The
plaintiff has become frustrated at his loss of capacity and fears for his
future.
[3.12] The plaintiff is plagued by pain daily, specifically the plaintiff reports
headaches, neck spasms and pain in his left shoulder.
[3.13] The plaintiff also has challenges with his memory and is markedly
depressed. His vision is also challenged and he experiences
photo sensitivity.
- 4 -
[4] Mr Rosen prepared an addendum to his report on the 9 th of October 2023.
The following additional information was provided in the addendum: -
[4.1] Payslips from 2023 show that the plaintiff earned a salary of
R49 500.00 and received an allowance of R5 000.00 per month. His
earnings on a monthly basis are therefore R54 500.00 per month or
R654 000.00 per annum.
[4.2] The plaintiff currently holds the title of Head of Section and he works
within office management.
[4.3] The plaintiff is paid significantly higher than he was at the time of
writing the original report.
[4.4] As a result, the plaintiff’s income has exceeded expectations as he
reinvented himself as a manager rather than being hands-on.
[4.5] The plaintiff is now no longer losing out on potential increases.
[4.6] However, the plaintiff remains a vulnerable employee and according to
Dr Volkersz, the orthopaedic surgeon, the plaintiff is still likely to retire
altogether at around the age of 60.
[4.7] Similarly, they plaintiff’s manager was of the view that there is only so
much pain that one can live with and that he doubted whether the
plaintiff would make it to retirement age.
[5] As a consequence, Mr Rosen recommended additional contingencies to
account for the plaintiff’s vulnerability. He noted the plaintiff’s likelihood of having to
retire early by the age of 60, which is some five years earlier than normal retirement
age. It is for these reasons that Mr Rosen opined that the plaintiff should be
compensated accordingly.
[6] Under cross-examination, Mr Rosen was questioned about the improvement
of the plaintiff in his current employment position. The defendant suggested that the
plaintiff had been promoted. Mr Rosen emphasised that the plaintiff had to undergo a
career change and that that would not constitute a promotion. Mr Rosen emphasised
that the plaintiff has reached the employment ceiling in his new position and that one
that the plaintiff has reached the employment ceiling in his new position and that one
must not lose sight of the fact that his position is an accommodated one.
- 5 -
Furthermore, Mr Rosen testified that notwithstanding the plaintiff’s improvement in
his current position and his increase in income, his constraints have not changed
and that he is still regarded as vulnerable.
Michelle Doran
[7] Ms Doran rendered a medico-legal occupational therapy report on the plaintiff
on the 29 th of November 2021 and prepared an addendum to her report on the
25th of August 2023.
[8] Ms Doran noted from the report of Dr Volkersz, the orthopaedic surgeon, that
the plaintiff would need to retire altogether at around the age of 60 due to the
combined effects of all of his injuries. Ms Doran confirmed that during her
assessment of the plaintiff, she did not find anything to contradict Dr Volkersz’s
opinion regarding the early retirement age. She confirmed that the plaintiff struggled
to obtain employment without accommodation when considering all of his injuries.
[9] Ms Doran listed a number of complaints reported by the plaintiff: -
[9.1] He experiences extreme leg tension and spasms on average three to
four times per day;
[9.2] He finds it difficult to pick up heavy items weighing more than 50 kg;
[9.3] He has a weak left arm on occasion, which is very painful;
[9.4] He suffers from low energy and tiredness, but cannot sleep;
[9.5] He has blurry vision on occasions, once or twice a week;
[9.6] He lives in pain;
[9.7] He has picked up weight, indicating 15 to 18 kg.
[10] Ms Doran during the assessment had the opportunity of having a discussion
with the plaintiff’s fiancé who highlighted the following: -
[10.1] The plaintiff is not physically capable of doing things. He cannot go off
riding with his bike every weekend, go jetskiing or camping. He is
fearful of reinjuring the neck and he feels like he cannot take the risk of
falling;
- 6 -
[10.2] He is frustrated;
[10.3] He cannot turn his neck and this is an issue and a challenge for him;
[10.4] He has not been sleeping for the last few months. His brain is in
overdrive, he gets frustrated in dreams and would wake her up as he
does not like to deal with things on his own;
[10.5] There has been a decline in his memory as he cannot recall what he
said and tends to repeat himself and this ends up in an argument;
[10.6] He is no longer part of the tactical team as he cannot move. This is
something that he used to love doing;
[10.7] He snaps quickly at the smallest things. He would express his anger by
picking up objects, for example a pen and throw it;
[10.8] He does not get motivated to get fit;
[10.9] He thinks about his neck;
[10.10] He is moody and he is always sleeping;
[10.11] He is unsure about the future and petrified about what will happen.
[11] Ms Doran assessed the plaintiff’s general cognitive ability as part of executive
functioning. Her assessment revealed the following: -
[11.1] The plaintiff underscored below the industry norm compared to workers
in professional occupations;
[11.2] They plaintiff may perform below the industry norm on tasks requiring
clear thinking, reasoning skills and problem solving skills which may
hinder him to form meaning out of confusion and problems occurring in
the work setting.
[12] Ms Doran assessed the plaintiff’s persistence, concentration and pace. The
assessment revealed the following: -
[12.1] The plaintiff measured 49.56 % slower than the rate set for the open
labour market;
[12.2] He made one error which was allowed for in this activity;
[12.3] He was noted to be overwhelmed, agitated and frustrated;
[12.4] He demonstrated decreased energy levels and fluctuating
concentration which led to inattention to detail;
- 7 -
[12.5] He also had picked up his mistake and thus had repacked the cards;
[12.6] He demonstrated increased anxiety when Ms Doran came and stood
behind him.
[13] Ms Doran arrived at the following findings: -
[13.1] The plaintiff sustained serious injuries to the cervical spine, which has
subsequently resulted in a cervical fusion;
[13.2] Injury to the cervical spine has restricted the plaintiff’s mobility with
reduced muscle strength/endurance, as well as restricted movement
thereof;
[13.3] It is accepted that a job match could not be secured especially for the
plaintiff to continue holding occupation as a tactical reaction officer in
the field;
[13.4] Considering the plaintiff has already undergone a cervical fusion, as
well as risks for an extension to this fusion, he would now be regarded
as being optimally suited for tasks of a sedentary to light nature when
neither of these is exerted on a constant basis;
[13.5] His overall functioning is further compromised by the confirmed diffuse
axonal brain injury, with moderately serious consequences, impacting
his neurocognitive, neuropsychological and neurobehavioural
functioning;
[13.6] It is accepted that the plaintiff can no longer function at the same level
as what he did prior to the accident in question, with the need to be
accommodated within his work environment;
[13.7] It is also accepted that accident injuries and related sequelae have
reduced the scope of employment that the plaintiff can enter into
post-accident, especially considering that his passion had always been
to work in the field as a tactical reaction officer which he no longer
retains suitability for;
[13.8] Should the plaintiff not be accommodated in a sedentary to light
environment as to what he currently holds, he would probably find it
difficult to retain employment, especially until indicated retirement age;
[13.9] It was accepted by Ms Doran that should the plaintiff need to undergo
- 8 -
extension of the cervical fusion, he would still be optimally suited for
sedentary to light work, falling within the stated parameters;
[13.10] It was accepted that should this not be a viable option, then early
retirement would become indicated, being in line with the report by
Dr Volkersz.
[14] Ms Doran concluded that it is accepted that considering the permanency of
the plaintiff’s pathology, compounded by the organic origin of his difficulties, he
would always suffer a severe and permanent loss and probably would always need
to work in an accommodated environment.
[15] Ms Doran recommended several therapeutic interventions which inter alia
included the intervention at an institute such as Documentation Based Care Back,
Neck, Shoulder Treatment Centre considering the symptomatic pathology in the
spine which has already necessitated a spinal fusion. It was also recommended that
the plaintiff would benefit from attending a cognitive behavioural program which
would aid in alleviating his psychological ailments.
[16] Under cross-examination, Ms Doran was questioned on the fact that she did
not consult with the plaintiff again when she prepared her addendum and that she
therefore would not have been aware of his new position. Ms Doran maintained that
notwithstanding his new position, the fact remained that the plaintiff was
accommodated in his new position and if not, he would suffer loss of five years due
to early retirement.
[17] Ms Doran’s evidence was further supported by the fact that in her addendum
she recorded that she accepted that the plaintiff is in a fortunate position that
allowance has been made for his post-accident and that he is working in a somewhat
sympathetic environment. It was also accepted by her that without these allowances,
and the degree of sympathy, and should he lose his current position, the plaintiff
would probably find it difficult to secure and probably more so to retain occupation,
especially for long periods of time.
- 9 -
[18] Accordingly, Ms Doran opined that considering the perm anency of his
pathology, compounded by the organic origin of his difficulties, the plaintiff would
always suffer severe and permanent loss and probably would always need to work in
an accommodated environment with some sympathetic mechanisms in place.
ANALYSIS OF THE EVIDENCE
[19] The plaintiff sustained the following injuries with resultant sequelae: -
[19.1] Head injury;
[19.2] Psychological and psychiatric sequelae as a result of the injuries
sustained in the accident and the event;
[19.3] Cervical spine fracture;
[19.4] Left clavicle fracture;
[19.5] Blunt abdominal trauma;
[19.6] Multiple soft tissue injuries and abrasions.
[20] Both experts who gave viva voce evidence, as well as the expert reports that
were not contested, are ad idem on one critical fact and that is that the plaintiff
cannot continue holding occupation as a tactical reaction officer and that his
retirement age has been reduced by five years as a result of his injuries sustained
during the accident and the resultant sequelae.
[21] In my view, the issues that the two expert witnesses were cross -examined on
did not detract in any way from the expert opinions expressed by them and their
evidence is therefore accepted.
[22] It is trite that the plaintiff bears the onus to prove on a balance of probabilities
that the injuries he sustained have reduced his earning capacity, which will result in
actual loss. 1 The court in Kerridge said at para 25: “Indeed, a physical disability
which impacts on the capacity to earn an income does not, on its own, reduce the
patrimony of an injured person. There must be proof that the reduction in the income
earning capacity will result in actual loss of income…” .
1 See Rudman v Road Accident Fund 2003(2) SA 234 (SCA); Road Accident Fund v Kerridge
2019(2) SA 233 (SCA)].
- 10 -
[23] I am satisfied that the plaintiff has proven that his injuries have given rise to
patrimonial loss. The plaintiff’s earning capacity does appear to have been affected,
as he has to be accommodated in a sedentary position. Had the accident not
occurred, he would presumably have continued working until the retirement age of
65.
[24] The plaintiff presented an actuarial calculation of loss of income prepared by
SNG Actuaries, which loss has been calculated as amounting to R1 750 966.00. A
22% post -morbid and 11% pre- morbid contingency for future loss of income was
suggested.
[25] Regarding the issue of general damages, Mr Serfontein appearing for the
plaintiff referred the court to Mohlaphuli N.O. 2 where an amount of R1 646 000.003
was awarded for spine and brain injuries. I was also referred to Myhill N.O.4 where
the patient was suffering from headaches, irritability, fatigue, disorientation and gross
cognitive malfunction stemming from a brain injury. The patient was awarded
R1 615 000.00.
5 I was also referred to MM 6 and Jancovich N.O.7 where the plaintiff
were awarded R1 032 000.008 and R874 000.00,9 respectively.
[26] In the circumstances, Mr Serfontein argued that the plaintiff would be
reasonably and justly compensated with an award of R1.2 million in respect of
general damages.
[27] Mr Mdlovu appearing for the defendant referred me to the unreported
2 Mohlaphuli N.O. v The South African National Road Agency Ltd and Another 2013 (6A4)
QOD 146 WCC.
3 The amount awarded was R1 million and the amount reflected in this judgment is the adjusted
figure.
4 Myhill N.O. v Road Accident Fund 2008 (5B4) QOD 271 (T).
5 The amount awarded was R750 000.00 and the amount reflected in this judgment is the
adjusted figure.
6 MM v Road Accident Fund 2019 (7B4) QOD 92 (FB).
7 Jancovich N.O. v Road Accident Fund 2021 (8A4) QOD 20 (FB).
8 The amount awarded was R850 000.00 and the amount reflected in this judgment is the
adjusted figure.
adjusted figure.
9 The amount awarded was R750 000.00 and the amount reflected in this judgment is the
adjusted figure.
- 11 -
judgment of Malaza 10 and Scheepers11 where the court applied a 20 % contingency
deduction. Mr Mdlovu argued further that as far as loss of income is concerned, the
actual loss should be limited to five years only and that accordingly the appropriate
figure for loss of income would be R954 525.60.
[28] Regarding the issue of general damages, Mr Mdlovu referred me to the
unreported decision of H awando12 where a head injury was sustained and used this
authority in support of his argument that an amount of R800,000.00 would be
appropriate in the circumstances.
[29] Contingencies protect the individual from consequences that come as a result
of motor vehicle collisions. The locus classicus with regard to contingencies is the
judgment of Nicholas JA at 116-117 of the decision in Southern Insurance13 the court
said “where the method of actuarial calculations 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”.
[30] Zulman JA, with reference to various authorities including Southern
Insurance, said the following in Guedes14:
“The calculation of the quantum of the future amount, such as loss of earning
capacity, is not as I have already indicated, a matter of exact mathematical
calculation. By its nature, such an enquiry is speculative and a court can
therefore only make an estimate of the present value of the loss that is often a
very rough estimate (see, for example, S outhern Insurance Association Ltd v
Bailey NO) courts have adopted the approach that, in order to assist in such
calculation, amount to be awarded as compensation and the figure arrived at
depends on the Judge’s view of what is fair”.
10 Malaza v Road Accident Fund (92060/16) [2019] ZAGPPHC 1079 (29 May 2019).
11 Scheepers v Road Accident Fund (893/2021) [2023] ZAFSHC 248 (20 June 2023).
12 Hawando v Road Accident Fund (70224/2019[2022] ZAGPPHC 159 (11 March 2022).
12 Hawando v Road Accident Fund (70224/2019[2022] ZAGPPHC 159 (11 March 2022).
13 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A).
14 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).
- 12 -
[31] Having considered the actuarial calculation and the authorities referred to by
both parties, the amounts claimed by the Plaintiff and the contingencies applied, are
in my view fair. In the result I award R1 750 966.00 in respect of loss of earnings and
R1 200 000.00 in respect of general damages.
COSTS
[32] On the issue of costs, Mr Serfontein argued that the plaintiff would be entitled
to costs on an attorney and client scale in light of the fact that the defendant failed to
make out a compelling argument regarding the plaintiff’s promotion and disregarded
the fact that the correct approach would be to consider the plaintiff in the position
that he would have been in had he not been injured at all. Mr Serfontein argued
further that the defendant should have settled the matter, yet no offer on loss of
income was made. Mr Serfontein therefore asked for an attorney and client costs
order in favour of the plaintiff.
[33] Mr Mdlovu on behalf of the defendant did not dispute the fact that costs
should follow the result, but argued for a party and party costs order.
[34] It is trite that the determination of costs is discretionary. Although the conduct
of the defendant leaves much to be desired, I find no compelling reason to grant a
punitive costs order.
ORDER
I accordingly grant an order in the following terms: -
1. The defendant is liable for 100 % of the plaintiff’s damages.
2. The defendant shall pay to the plaintiff the capital amount of
R2 950 966.00 (two million nine hundred and fifty thousand nine hundred and
sixty six Rand): -
2.1. R1 750 966.00 (one million seven hundred and fifty thousand
nine hundred and sixty six Rand) is in respect of loss of earnings;
2.2. R1 200 000.00 (one million two hundred thousand Rand) is in
- 13 -
respect of general damages,
together with interest a tempore morae calculated in accordance with
the Prescribed Rate of Interest Act, 55 of 1975, read with section
17(3)(a) of the Road Accident Fund Act, 56 of 1996.
3. Payment will be made directly to the trust account of the plaintiff’s
attorneys within 180 (one hundred and eighty) days from the granting of this
order, the trust account details whereof are as follows: -
Holder: De Broglio Attorneys Inc
Account number: 1[..]
Bank and branch: Nedbank – N[..] G[…]
Code: 1[…]
Reference: D[…]
4. The defendant is ordered in terms of section 17(4)(a) of the Road
Accident Fund Act, 56 of 1996 to reimburse 100 % of the plaintiff for the costs
of any future accommodation of the plaintiff in a hospital or nursing home, or
treatment or rendering of service to him or supplying goods to him arising out
of injuries sustained by the plaintiff in a motor vehicle accident on which the
cause of action is based, after such costs have been incurred and upon proof
thereof.
5. The defendant is to pay the plaintiff’s agreed or taxed High Court costs
as between party and party, such costs to include the preparation and
qualifying and reservation fees of the experts, consequent upon obtaining the
plaintiff’s reports, the plaintiff’s reasonable travel and accommodation costs to
attend the plaintiff’s experts, the costs of all the plaintiff’s expert reports,
addendum reports, and confirmatory affidavits and costs of counsel (subject
to the discretion of the taxing master).
6. The defendant is to pay the the reasonable and qualifying fees of the
following experts:
6.1 Mr L Rosen – industrial psychologist.
6.2 Ms M Doran – occupational therapist.
6.3 Dr Volkersz – orthopaedic surgeon.
6.4 SNG Argen – actuaries.
6.5 Dr Stoler – ophthalmic surgeon.
- 14 -
6.6 Dr Naidoo – psychiatrist.
6.7 Dr Lewer-Allen – neurosurgeon.
6.7 Ms Gibson – neuro-psychologist.
7. The plaintiff shall, in the event that the costs are not agreed: -
7.1. serve the notice of taxation on the defendant; and
7.2. allow the defendant 14 (fourteen) days to make payment of the
taxed costs.
8. The issue of past hospital and medical expenses is postponed sine die.
9. There is no contingency fee agreement in existence between the
plaintiff and his attorneys.
F BEZUIDENHOUT
ACTING JUDGE OF THE HIGH COURT
DATE OF HEARING:16 & 17 November 2023
DATE OF JUDGMENT:27 May 2024
APPEARANCES:
On behalf of plaintiff: Adv E Serfontein
082-452-8943
serfontein@law.co.za
Instructed by:
De Broglio Inc
(011) 446-4211
zandelee@onlinelaw.co.za.
- 15 -
Claims handler for defendant:Thandi Mathebula
(012) 429-5000
thandim1@raf.co.za
For the defendant:State Attorney
Ref: Elias Mdlovu
079-525-0235
eliasmatalenim@raf.co.za.