IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 8017/2021
In the matter between:
LUVUYO BONGA QOLO Plaintiff
and
ROAD ACCIDENT FUND Defendant
_______________________________________________________________
JUDGMENT DELIVERED ON 30 NOVEMBER 2025
VAN ZYL, AJ:
Introduction
1. The plaintiff claims damages from the defendant in the form of a loss of
earning capacity, under the provisions of the Road Accident Fund Act
56 of 1996 (“the Act”).
2. The claim arises from a motor vehicle collision that occurred on 18
August 2018, in which t he plaintiff sustained serious damages. He was
32 years old at the time.1 It is common cause that the plaintiff sustained
a traumatic brain injury, and suffers from PTSD. He also sustained
chest injuries, abdominal injuries, and multiple fractures of his right and
left femur, right and left tibia, and right fibula. He has a significant leg
length discrepancy of about 4cm, and 80% lower extremity impairment.
He can only walk for about 50 metres at any given time.
3. Prior to the collision the plaintiff worked for Metrorail as a protection
officer/ticket verifier. He had a second income from his employment by
the Golden Crust Bakery as a driver for their staff during the night -time
hours. After the collision the plaintiff eventually lost the Golden Crust
contract, and is currently employed by Metrorail as a customer services
official.
4. The defendant conceded liability , and v arious aspects in relation to the
quantum of damages have already been settled between the part ies,2
and the extent to which there was a loss of earning capacity is the only
broad issue that remains for determination.3
5. The plaintiff has filed expert reports in respect of Dr. Zane Domingo,
neurosurgeon; Dr. Ben Schutte, orthopaedic surgeon; Mr. Keith Polden,
clinical psychologist; Ms Benita Crouse, occupational therapist; Ms.
Pumla Hako, industrial psychologist, and Mr Tatenda Mhonde, actuary.
6. The defendant has filed expert reports from Ms T. Cawood,
occupational therapist, and the industrial psychologist, Ms L. Maritz.
7. Joint minutes were compiled by the occupational therapists and
industrial psychologists.
1 He is currently 39 years old.
2 Including general damages.
3 The parties have agreed to let f urther actuarial evidence and calculations stand over
pending the court's findings in respect of the issues which require determination at this
stage.
8. The issue of loss of earning capacity in the present matter comprises
three elements. They are:
8.1 first, whether the plaintiff's income from his employment with the
Golden Crust Bakery was lost due to his injuries;
8.2 second, what the plaintiff's uninjured career path would have
been, including whether his pre -morbid career path would have
progressed to Paterson Level C4 ( median quartile) and whether
he was earning at Paterson Level B1 (medium quartile) in the
corporate work sector at the time of his injury in August 2018;
and
8.3 third, the determination of appropriate contingency deductions in
respect of the plaintiff's future earnings (both uninjured and
injured).
9. The question in relation to the plaintiff’s pre -morbid career path arises
from a supplementary report concluded by Ms Pumla Hako, industrial
psychologist. She reports that the plaintiff, in a follow-up conversation to
obtain updated information regarding his current employment situation,
informed her that he had intended to study for a Human Resources
degree ·and had been accepted by the Cape Peninsula University of
Technology (CPUT) for an alternat ive degree course to commence in
2019, when the collision intervened.
10. I discuss each of these issues in turn below.
Why did the plaintiff lose his income from Golden Crust Bakery?
11. The parties’ respective industrial psychologists, Ms Hako and Ms
Maritz, formulated a joint minute in which they expressly agreed that the
plaintiff's driving contract came to an end on 20 November 2020
because the plaintiff could not cope.
12. The plaintiff testified that the correct the date of termination of the
contract was January 2020. The defendant seeks to make more of this
discrepancy than what it is. The plaintiff’s evidence is corroborated by
his bank statements , which indicate that his weekly Golden Crust
Bakery income in the sum of R4 800.00 stopped at the end of January
2020. In their oral evidence both these experts accepted that to be the
position. The confusion in this regard is not remarkable, as it is
common cause that the p laintiff suffers from memory loss. His initial
incorrect reporting of the date of termination to the relevant experts
created the error.
13. The defendant, out of the blue, sought to challenge the veracity of this
evidence at the trial. However, g iven the c onsensus reached between
the experts in their joint minute as to the causal link between the
plaintiff's injuries and the termination of his contract, it was not open to
the defendant to dispute this issue in the absence of a timeous notice of
repudiation of the joint minute. No such notice was ever given in the
present matter.
14. In Bee v Road Accident Fund4: the Supreme Court of Appeal confirmed
that it cannot be expected of a litigant to adduce evidence on matters
agreed between experts. Where experts had filed a joint minute and
agreed on certain factual issues, the minute will correctly be understood
as limiting the issues on which evidence is required. If a litigant wishes
to repudiate an agreement reached in a joint minute the repudiation
must occur clearly and timeously.
4 2018 (4) SA 366 (SCA) paras 64-75.
“[66] Facts and opinions on which the litigants' experts agree are not quite the
same as admissions by or agreements between th e litigants themselves
(whether directly or, more commonly, through their legal representatives)
because a witness is not an agent of the litigant who engages him or her.
Expert witnesses nevertheless stand on a different footing from other
witnesses. A pa rty cannot call an expert witness without furnishing a summary
of the expert's opinions and reasons for the opinions. Since it is common for
experts to agree on some matters and disagree on others, it is desirable, for
efficient case management, that the e xperts should meet with a view to
reaching sensible agreement on as much as possible so that the expert
testimony can be confined to matters truly in dispute. Where, as here, the court
has directed experts to meet and file joint minutes, and where the expe rts have
done so, the joint minute will correctly be understood as limiting the issues on
which evidence is needed.”5
15. In the absence of formal and timeous repudiation from the defendant,
therefore, the agreement between Ms Hako and Ms Maritz as to the
causal link between the termination of the plaintiff's bakery contract and
the plaintiff's injuries is binding on the parties and the Court: I heard no
reason in argument that would justify deviating from this position.
16. In any event, and irrespective of the joint minute, the plaintiff’s evidence
made the position quite clear. He testified that he had been operating
the business of transporting Golden Crust Bakery's employees to and
from work in two shifts lasting approximately five hours between 10pm
and 3 am each night. He h eld a public driving permit. He had the
contract since 2008 , and he testified in cross -examination that he had
been regarded as the most reliable of the bakery's contract drivers.
17. After the collision, he was unable personally to resume driving in terms
17. After the collision, he was unable personally to resume driving in terms
of the contract. His evidence that this was due to his injuries is
5 Bee supra para 66.
supported by the occupational therapist, Ms Crouse.6 Ms Crouse is of
the view that the plaintiff should not return to driving under the contract
due to difficulties with his leg. Dr Schutte, orthopaedic surgeon, 7
confirms that the plaintiff is suffering from severe chronic pain and
weakness of his hip, knees and legs. He limps heavily as he moves ,
and struggles to get into a vehicle be cause of a decreased range of
motion of his knees. Dr Schutte is of the view that the p laintiff's
condition is likely to get progressively worse due to osteoarthritic
changes. Th is is confirmed by the radiology report filed of record,
particularly with regard to the plaintiff’s left knee.
18. In a joint minute compiled by Ms Crouse and Ms Cawood (the
defendant’s occupational therapist ), Ms Cawood expresse s the view
that the p laintiff may be able to cope as a driver subject to the
preclusion of any extended travelling demands. It cannot be denied that
the plaintiff's 5 -hour round trip daily constituted extended travelling
demands, and he could not cope. He therefore resorted to employing
drivers to do the work on his behalf.
19. This arrangement lasted until the termination of the contract. The
bakery eventually reported to the plaintiff that the unreliability of his
drivers was causing the bakery financial loss, and that is why his
contract was cancelled. Mr Kamungoma, a former manag er at the
Golden Crust Bakery , confirmed in his evidence that the problems with
the plaintiff's driving services only arose after the collision. He also
confirmed that the bakery did not close during the Covid lockdown
period, but remained operating as an essential service. The
subsequent sale of the bakery and its move to new premises in Parow
did not change the position as regards the plaintif f, as most of the staff
remained employed there . The plaintiff’s contract was thus not
terminated as a result of the lockdown.
6 Ms Crouse’s expert report was admitted by the defendant.
6 Ms Crouse’s expert report was admitted by the defendant.
7 Dr Schutte’s expert report was admitted by the defendant.
20. It emerged during Ms Maritz's evidence that she had in fact prepared an
earlier report (not filed of record) in which she report ed that the bakery
contract had been lost because the plaintiff could not cope. In my view
the plaintiff has, on all of this evidence, established that his bakery
driving contract was terminated at the end of January 2020, and that it
occurred a result of his own inability to drive.
21. This evidence was not undermined in cross -examination, despite
lengthy questioning on the reliability of the plaintiff’s drivers, the
suggestion being that it was their unreliability rather than the plaintiff’s
injuries that caused the termination of the contract.
22. Causation in the delictual context requires an inquiry into both factual
and legal causation. The first inquiry is satisfied if the negligent act or
omission caused or materially contributed to the harm. The second i s
satisfied if there is a sufficiently close link between the negligent act and
the harm. Both enquiries entail a flexible approach. 8 In Minister of
Police v Skosana9 the court stated as follows:
"Causation in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question as to whether the negligent act
or omission in question caused or materially contributed to the harm giving
rise to the claim. If it did not, then no legal liability can arise and cadit quaestio.
If it did, then the second problem becomes relevant, viz. whether the negligent
act or omission is linked to the harm sufficiently closely or directly for legal
liability to ensue or whether, as it is said, the harm is too remote. This is
basically a juridical problem, in which considerations of legal policy may play a
part."
8 Lee v Min ister of Correctional Services 2013 (2) SA 144 (CC) para 38, Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) paras
30-35.
9 1977 (1) SA 31 (A) at 34.
23. In the present case, the negligent act caused the p laintiff’s injuries,
which prevented him – personally - from driving under his contract. His
inability to drive is directly linked to his injuries. The fact that the plaintiff
attempted to recruit other drivers who proved to be too unreliable for the
bakery, cannot detract from the link between his injuries and the loss of
his driving contract – his attempt to retain the contract did not constitute
a novus actus interveniens . On the direct consequences approach,
therefore, the loss of the driving contract was directly related to the
injuries.
24. On the foreseeability test, it was reasonably foreseeab le that , if the
plaintiff was injured and unable to drive, he would lose his driving
contract. There is nothing complicated about. T he causal link between
the termination of the p laintiff’s driving contract and his injuries has
therefore been established.
25. The plaintiff’s counsel pointed out that, i n their initial and revised
actuarial reports, the plaintiff's actuary included the loss of the bakery
contract income. ln the first report, the actuary provided for an uninjured
earnings gap of two and a half years (between November 2020 and
March 2022), based on an incorrect assumption relating to the
termination of the contract in November 2020, and for unrelated
reasons at the time . He nevertheless assumed that, but for the
plaintiff’s injuries, the p laintiff would have been able to resume the
driving contract from March 2022. In the second report, the actuary no
longer provided for a gap in the p laintiff’s uninjured bakery business
earnings, but still incorrectly calculated the loss from November 2020
instead of from February 2020.
26. In the defendant's actuarial report, the bakery contract income has been
disregarded, because the assumption was that the contract had been
terminated for reasons not related to the collision, and would not have
resumed, uninjured, at all. Those assumptions ignore the joint minute
consensus to the contrary by Ms Hako and Ms Maritz, and is also
contrary to the evidence led at the hearing.
27. Once it is accepted that the plaintiff's bakery income was lost due to the
sequelae of the collision, it follows that , uninjured, the p laintiff would
probably have continued his driving contract for the bakery, and its
successor-in-title when the business moved to new premises in Parow,
until retirement.
28. In these circumstances, I find that the bakery contract was terminated in
January 2020 as a result of the p laintiff's injuries. From the bank
statements on record, it is clear that the bakery earnings that were lost
amounted to R19 600.00 per month, or R235 2 00.00 per year at the
time, and would , but for the collision, have increased in line with
inflation from February 2020 until the p laintiff reached the age of 65.
The defendant argues that the plaintiff’s costs of performing the driving
contract, including petrol, maintenance, and the like, should be factored
in. I do not think that that would be fair. Neither party has led evidence
in relation to such usual expenses, and the plaintiff has not sought to
claim the costs of employing drivers following the collision from the
defendant.
The plaintiff’s probable career progression but for the collision
29. I turn to the second issue , which focuses on the plaintiff’s uninjured
career at Metrorail. The respective industrial psychologists have
followed two different approaches. This difference is, in turn, reflected
in the actuarial calculations on record.
30. Ms Hako testified that, at the date of his injury, the plaintiff was earning
R147 254.52 per year at Metrorail (based on a salary of R12 270.21 x
12), which is just above the B1 basic salary median quartile (or the A3
basic salary upper quartile) on the 2018 Paterson corporate earnings
scales.
31. The amount of the p laintiff’s earnings at the time is not in dispute,
although Ms Maritz characterises t he applicable Paterson scale as A3
median quartile. Ms Maritz testified that she applied the A3 total
package median quartile scale because the plaintiff’s Metrorail income
(of R147 254.52 per year) was, according to her, a total package sum.
32. A consideration of the plaintiff’s wage slip, however, indicates that she
is incorrect in this assumption. From the wage slip for the period 1 June
2018 to 30 June 2018 it appears that the plaintiff paid contributions to a
provident fund, UIF contributions, and extended cover and union fees.
His total annual wage package was R185 838.96 (not R147 254.52,
which was based on a wage of R12 270.21 per month). The p laintiff
was in fact paid R15 130.76, which was based on R12 270.21, less
deductions of R3 048.42 , plus adjustments of R5 927.92. This accords
with the amount he was paid for June 2018 as recorded in his bank
statement on 27 June 2018. The Corporate Survey earnings for 2018
show that the plaintiff’s total annual package of R185 838.96, equates
to the Paterson B1 total package median quartile earnings scale, which
correlates with his B1 basic salary median quartile earnings scale.
33. In her initial report Ms Hako was of the opinion that the p laintiff would
have gradually improved his position at Metrorail through promotions to
a Paterson Level C1/C2 (total package, median quartile) by age 45.
Typically, according to her evidence, Paterson C1/C2 level caters for
employees with a tertiary certificate qualification, as the plaintiff had at
the time. The projection in Ms Hako’s initial report was conservative,
because it places the plaintiff at the lowest end of the Level C skilled
earnings scale by the end of his career.
34. Ms Maritz’s view that the p laintiff would only have progressed to
Paterson Level B3 by age 45 (presumably she meant full package
rather than basic salary, although she fails to specify), and that he
would therefore have remained in semi -skilled employment at best.
She provides no r easoned motivation for her opinion in this regard,
save that she (incorrectly) reports that the p laintiff was on median
quartile A3 at age 32: he was on the median quartile B1, for both basic
salary and total package, (or upper quartile A3) at that age.
35. As indicated earlier, Ms Hako prepared a supplementary report after
consulting with the plaintiff again in preparation for the trial. He informed
her that he had applied to study for a part-time 4-year degree in Human
Resources, or a similar degree. Ms H ako also consulted with the
plaintiff’s supervisor at Metrorail, Ms Dyabhashe , who said that there
would have been good opportunities for growth for the p laintiff to
become a Human Resources officer or supervisor in Metrorail if the
plaintiff had obta ined a degree . In light of this information, Ms Hako
testified that the p laintiff would have progressed to Paterson Level
B3/B4 on completion of his degree, and thereafter to Level C4 (median
quartile), which is still in the skilled band, rather than the D band for
persons with a university degree.
36. Ms Maritz testified that she could find no record of the p laintiff's
application at CPUT. The only other evidence about the p laintiff's
intentions to study further is th at Ms Cawood recorded that the plaintiff
had previously been accepted for degree studies in 2006, but he could
not continue with them . The p laintiff has been unable to find any
additional evidence to substantiate his assertion that he had applied in
2018 and had been accepted to study further from 2019 . The
defendant argue s that the plaintiff’s oral report to Ms Hako about his
alleged acceptance to CPUT is, on its own, not sufficient proof of the
averment that he was about to study further.
37. I agree with the defendant’s submissions. On this aspect, therefore, I
do not regard there to be sufficient evidence for the further career
progress postulated in Ms Hako's supplementary report.
38. I do, however, a ccept the plaintiff’s counsel’s submission that Ms
Hako's uninjured career path scenario is more probable than that
suggested by Ms Maritz: The plaintiff was already on the B1 median
quartile (both in relation to basic income and total package) at age 32,
while Ms Maritz had incorrectly described his income (of R147 254.52)
as total package, and therefore placed him on median quartile A3. The
plaintiff had Grade 12 qualifications with a slant towards economics and
accounting, and a National Certificate in Human Resources, which
places him in the skilled earnings band (Paterson Scale C), despite Ms
Maritz's reservations about the additional National Certificate being the
equivalent of a Grade 12 certificate . The fact remains that he obtained
these qualifications post -matric. The plaintiff is clearly industrious and
hardworking, and he does not shy away from opportunities to better his
education.
39. I accordingly accept Ms Hako’s recommendation that the plaintiff would
probably have progressed from Paterson Level B1 (total package,
median quartile) at the date of the collision, to Level C1/C2 (full
package, median quartile) by age 45. He would thereafter have earned
increases in line with inflation until age 63 , w hich is Metrorail’s
retirement age . The appropriate starting point for the actuarial
calculation in this respect would be to use the B1 total annual package
amount of R185 838.96.10
10 The defendant's actuary provided a calculation which progressed plaintiff’s uninjured
career path to B1, presumably total package, median quartile by age 45. Neither Ms
Hako nor Ms Maritz projected the plaintiff's uninjured career path only to Paterson
Hako nor Ms Maritz projected the plaintiff's uninjured career path only to Paterson
Level B1 median quartile by age 45. That was the plaintiff's income scale at the time
of his injury at age 32, and therefore assumes no uninjured career progression at all.
The applicable contingencies
40. Contingencies are the hazards of life that normally beset the lives and
circumstances of ordinary people, and should therefore, by its very
nature, be a process of subjective impression or estimation rather than
objective calculation.11 In Goodall v President Insuranc e Co Ltd 12 the
court stated:
"In the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or science of foretelling
the future, so confidently practiced by ancient prophets and soothsayers, and
by authors of a certain type of almanac, is not numbered among the
qualifications for judicial office.”
41. It is for this reason that a court has a wide discretion when it comes to
the determination of contingencies. It has been held that:
“[17] … Contingencies for which allowance should be made, would usually
include the following:
(a) the possibility of illness which would have occurred in any event;
(b) inflation or deflation of the value of money in future; and
(c) other risks of life such as accidents or even death, which would have
become a reality, sooner or later, in any event … .
[18] In the Quantum Year book (by Robert Koch, 2017 Edition, p 126) the
learned author points out that there are no fixed rules as regards general
contingencies. However, he suggests the following guidelines:
‘Sliding scale: Yz% per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age…
Normal contingencies: The RAF usually agrees to deductions of 5% for
past loss and 15% for future loss, the so-called normal contingencies.’"13
11 Shield Ins Co Ltd v Booysen 1979 (3) SA 953 (A) at 965G-H.
12 1978 (1) SA 389 (W) at 392H-393A.
13 Phalane v Road Accident Fund [2017] ZAGPPHC 759 (7 November 2017) paras 17-18.
42. Direct evidence of appropriate contingencies cannot be given by an
actuary,14 and an actuary's inclusion of contingency deductions in their
calculations is at best only illustrative. The determination of the
appropriate contingencies remains the court’s prerogative.15
43. After the collision, the plaintiff has continued to be employed by
Metrorail, but in a different accommodated post, at a lower salary.
What, therefore, would be an appropriate contingency deduction
differential between uninjured and injured earnings in respect of his
future Metrorail earnings ? In the plaintiff’s actuary’s first report, a 20%
contingency differential deduction for future earnings (uninjured versus
injured} was applied , while the d efendant's actuary applied a 4%
differential. This is a material difference because, the more conservative
the differential, the smaller the award.
44. In matters where a plaintiff's residual earning capacity, or elements
thereof, are difficult to assess with precision, it has been customary to
apply a higher than usual contingency differential deduction between
future earnings but for the collision, and future earnings having regard
to the collision. In Venter v Mutual and Federal Versekering 16 the court
allowed a 10% versus 25% deduction for uninjured and injured future
earnings respectively (a 15% contingency differential) in the case of a
plaintiff (Venter) with injuries similar to those of the plaintiff in the
present matter. The plaintiff's orthopaedic injuries were arguably worse
in the present case, and he s has suffered head injury sequelae, which
Venter did not.
45. Van Drimmelen v President Versekering Bpk 17 is instructive. There, a
contingency differential deduction of 20% (10% uninjured and 30%
14 Shield Ins Co Ltd v Hall 1976 (4) SA 431 (A) at 444F.
15 Phalane v Road Accident Fund supra para 3.
16 1988 3 QOD 749 (T).
17 1993 4 QD E2-19.
injured) was applied. The plaintiff, a 17 -year-old student, suffered
multiple lower limb orthopaedic injuries, i ncluding amputation of his left
leg. The court found18 that he would be employed (in his injured state)
as a mechanical engineer in the future, and would be able to work until
retirement age 65, because he would be part of management for at
least the last 10 years of his working life. He would be less competi tive
in his job choices, however, because he would be unable to work for
certain companies requiring engineers. Had he been found to be totally
unemployable in the last 10 years, the contingency differential applied
would have been higher.
46. In the present case, I agree with the submission by the plaintiff’s
counsel that a deduction differential of 20% in respect of the Metrorail
future earnings (the difference between 15% uninjured and 35%
injured) is appropriate and in line with Van Drimmelen . It is common
cause that the plaintiff will have increasing orthopaedic difficulties in his
later years which will, together with his cognitive difficulties,
compromise his employability and competitiveness in the marketplace.
Should he lose his current employment with Metrorail, who is an
accommodating employer, the p laintiff is likely to remain unemployed
for the rest of his life , as his employment opportunities will be
significantly limited . This is agreed upon by all of the relevant expert
witnesses.
47. Dr Polden,19 for example, states as follows in his report:
"He was employed as a ticket verifier at Metrorail Protection Services before
the accident and had to reassigned to customer services due to his physical
difficulties he had been experiencing after the accident under review. In
addition to his work at Metrorail, he also had a contract with a bakery providing
worker transport. Although he had a driver for most days of the week, he
18 At E2-30 to E2-31.
19 Clinical psychologist. My emphasis.
would do the driving on the driver's days off. Since the accident he has been
unable to do the driving due to his limb problems an d he has had to employ a
second driver... The brain injury he sustained ... has led to cognitive and
behavioural difficulties that would probably be expected to impede his
functioning significantly and negatively affect his employability in the future .
According to Mr. Qolo, his cognitive and behavioural problems have already
negatively impacted on his functioning at work and he tries to avoid client
contact. The residual neuropsychological difficulties he has probably been left
with, would make it difficul t for him to learn new skills or perform duties at an
acceptable level and/or pace. His socio -emotional difficulties are probably
directly related to the accident and would make it increasing difficult for him to
sustain employment over time, as well as negatively affect his interactions with
others. He is thus not considered an equal competitor in the open labour
market."
48. The defendant argues that it is close on seven years since the date of
injury, and the p laintiff remains suitably accommodated by Metrorail.
There is no evidence before this court of any disciplinary action, past or
pending against the plaintiff. Hence, there is no room for an argument
that the p laintiff is at risk of being dismissed from his current
employment. This may be so, but it merely indicates that Metrorail has
been accommodating towards the plaintiff. It does not negate the fact
that the risk remains that the plaintiff will remain unemployed should he
lose his position with an accommodating employer.
49. Apart from his PTSD, his physical condition is likely to deteriorate over
time. This position justifies a significantly higher contingency differential
deduction between uninjur ed and injured future earnings than the 4%
suggested by the defendant.
50. As indicated earlier, the plaintiff has no future earning prospects from
50. As indicated earlier, the plaintiff has no future earning prospects from
the bakery contract , and the normal contingencies should therefore
apply. I regard a 15% deduction in respect of his uninjured future
bakery earnings as appropriate.
Conclusion
51. I a ccordingly make the following findings at this stage of the
proceedings:
In respect of the Golden Crust Bakery contract earnings
52. The plaintiff’s contract was terminated in January 2020 due to his
injuries.
53. The plaintiff was earning R19 600.00 per month, or R235 200.00 per
year, through his bakery driving contract at the time of his injury.
54. Uninjured, the plaintiff’ s bakery earnings would have increased in line
with inflation from February 2020 until plaintiff reached the age of 65
years.
55. The calculation of the plaintiff’s loss of income from the termination of
his contract is subject to the plaintiff’s actuarial as sumptions regarding
past and future inflation, the net discount rate, and mortality rates , that
is, the usual or standard assumptions.
56. The calculation of the bakery earnings loss is subject to a 15%
contingency deduction in respect of his uninjured earnings.
In respect of the Metrorail loss of earnings:
57. The plaintiff would have progressed from Paterson B1 (median quartile,
total package at R185 383.96 per year) to C1/C2 median quartile, total
package) by age 45.
58. The plaintiff would thereafter have earned increases in line with inflation
until age 63.
59. The calculation of the loss of Metrorail earnings is subject to the plaintiff's
standard actuarial assumptions regarding past and future inflation, the
net discount rate , and mortality rate , that is, t he usual or standard
assumptions.
60. A contingency deduction of 15% uninjured and 35% injured shall be
applied to the plaintiff's future Metrorail earnings calculation (with 5%
applied to both past uninjured and injured incomes).
Costs
61. The parties have agreed that all questions of costs (including costs that
are standing over from the prior settlement of the merits and general
damages between them) will stand over pending the quantum
calculations and deliberations following the court’s findings.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the plaintiff: Mr J. A. van der Merwe SC and Ms Z.
Ncalo
Instructed by: Odwa Bentswana Attorney
For the defendant: Mr G. Cerfontyne
Instructed by: The State Attorney