1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2010/14593
In the matter between:
FERNANDO UCUTO PLAINTIFF
and
THE PASSENGER RAIL AGENCY OF
SOUTH AFRICA DEFENDANT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
DREYER AJ
[1] The Plaintiff, Mr Ucuto, sustained a severe compound fracture of his right
humerus and an injury to his thoracic spine, when he fell out of a moving train
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
2
as the train carriage had open doors. The compound fracture necessitated an
above elbow amputation of Mr Ucuto’s right arm. The Defendant, the South
African Rail Commuter Corporation (PRASA), owned and operated the train.
[2] The parties have settled the merits. PRASA accepts it is liable for 50% of the
Plaintiff’s proven or agreed damages.
[3] In November 2015, the parties settled both the general damages and the
Plaintiff’s loss of earnings. The Defendant paid the Plaintiff the sum of
R1 250 000.00, being 50% of the Plaintiff’s claim for general damages, and
future and past earnings.
[4] That leaves the determination of the Plaintiff’s future medical and associated
expenses.
[5] In 2013, the Defendant made an interim payment to the Plaintiff in the sum of
R300 000.00. This interim payment must be taken into account in the final
quantification of the Plaintiff’s damages.
[6] On 6 December 2016, PRASA undertook to provide the Plaintiff with a
prosthesis and to pay the costs of this prosthesis, together with the prosthetic
rehabilitation programme. Mr Ucuto committed to ongoing monitoring and
follow-up consultations for a period of 12 months following the completion of
the prosthetic rehabilitation programme in order to assess his suitability for and
use of the prosthetic. The agreement was made an order of court (“the 2016
order”).
3
[7] PRASA paid Mr Ucuto the sum of R1.6 million for the provision of the prosthesis
in January 2018. The 2016 court order required that this payment be taken into
account in the final quantification of the Plaintiff’s damages.
[8] Joint minutes were filed by all the experts where the parties engaged experts
of a similar specialisation. By agreement between the parties, I am to accept
into evidence both the reports of and the agreement reached by the respective
experts, the orthopaedic surgeons, Dr RJL Stein and Dr GO Reid, who agreed
that Mr Ucuto be provided with a prosthesis and the actuaries Mr R Immermann
and Mr GA Whittaker.
[9] The orthotists and prosthetists, Messrs Grimsehl, Fourie and Kuhn, agreed on
all but one aspect in their joint minute (the Grimsehl-Kuhn minute). While both
agree that Mr Ucuto should be provided with a myoelectric prosthesis and a
spare prosthesis, Mr Grimsehl is of the view that the additional prosthesis
should be a myoelectric prosthesis; Mr Kuhn is of the view that the additional
prothesis should be a cosmetic prosthesis.
[10] Despite the agreement between the orthotists and prosthetists,1 PRASA took
issue with one paragraph in the Grimsehl-Kuhn minute, who agree that “Mr
Ucuto is a functional prosthetic user. He excels in functional use of his
prosthesis in activities of daily living and uses the prosthesis for the function it
was designed and manufactured to do”.2 The Defendant disputed that Mr
1 Bee v RAF [2018] ZASCA 52, where the Supreme Court held that while parties are generally bound
by the joint minute of experts, the Court is not. 2 Para 7.6 of the joint minute of 23 July 2025.
4
Ucuto is a suitable candidate for a myoelectric prosthesis. The Defendant
contended that Mr Ucuto would be better served by a cosmetic prosthesis. The
Defendant relied on the evidence of its occupational therapist, Ms Swart, to
dispute this agreement recorded in the Grimsehl-Kuhn minute.
[11] In both the written and oral argument, the Defendant changed course,
conceding that the Plaintiff was entitled to be awarded a myoelectric prosthesis.
I will return to this.
[12] The parties agreed to the actuarial calculations of the capitalised values of the
future medical and related expenses.3 The actuaries provided two schedules of
the capitalised value of the future medical and related expenses. The first
schedule was based on Mr Ucuto’s future medical expense requirements, as
set out in the report of Mr Grimsehl. These calculations make provision for one
myoelectric prosthesis to be provided to the Plaintiff every five years, together
with a spare myoelectric prosthesis that the Mr Ucuto could utilise when the first
prosthesis was in for repairs or a service. The second schedule incorporated
the expenses as identified by the Defendant’s orthotist, Mr Kuhn, that Mr Ucuto
only required one myoelectric prosthesis and that the spare prosthesis be a
cosmetic prosthesis. Aside from this distinction, the calculations of the experts
are identical.
[13] In the course of the trial, the parties agreed on the quantification of the future
medical expenses to be awarded to Mr Ucuto in relation to psychiatric treatment
3 Caselines 006-36 to 006-40 Appendix I and Appendix II
5
and consultations as set out in the report of the psychiatrist, Dr
Mashayamombe, in the sum of R152 115.00 (subject to contingencies), and
R15 000.00 for psychotherapy as recommended by the occupational
therapists, Ms Twala and Dr Peta.
[14] The respective occupational therapists, Ms Motake for the Plaintiff and Ms
Swart for the Defendant, agree that Mr Ucuto be provided with a number of
adaptive devices to assist him with his general daily activities. The necessity
for these adaptive devices is not placed in issue. Ms Motake agrees with the
assessment of the orthotists and prosthetists, that Mr Ucuto is awarded a
myoelectrical prosthesis. Ms Swart does not; she contends for a cosmetic
prosthesis.
[15] In addition to seeking the medical costs for the prosthesis, Mr Ucuto seeks
further damages, which he styles as “ associated medical expenses”, to
accommodate his injury namely with the provision of adaptive housing, either
to make his current home more accessible for him or to build a home that is
specifically built to accommodate his disability; and providing Mr Ucuto with a
motor vehicle that is adapted to take his disability into consideration. The
Defendant admitted the calculation of the quantum of these damages but
disputed the necessity for these damages to be awarded to Mr Ucuto.
[16] The issues I am called on to decide are:
6
1. the status of the combined joint minute between Heinrich Grimsehl for the
Plaintiff and Riaan Fourie and Eluah Kuhn for the Defendant, dated 30
November 2016;
2. what type of prosthesis Mr Ucuto should be awarded – a myoelectric
prosthesis or a cosmetic prosthesis, and the costs associated with the
prosthesis awarded;
3. whether Mr Ucuto should be awarded the “associated medical costs” of the
provision of the motor vehicle and accommodation;
4. the quantification of the Plaintiff’s future medical expenses and associated
expenses; and, lastly,
5. the question of costs.
EVIDENCE FOR THE PLAINTIFF
Mr Grimsehl
[17] The Plaintiff’s first witness was Mr Grimsehl, an orthotist and prosthetist.
Mr Grimsehl first assessed Mr Ucuto’s suitability for a prosthesis in October
2011. Mr Grimsehl’s observation, in conducting a physical assessment of
Mr Ucuto, was that Mr Ucuto’s stump link was very short, only 10cm from the
shoulder joint. The amputation site is well-healed with good skin coverage.
Mr Ucuto has good shoulder and stump movement. The myo-testing indicated
that the signals and functions were observed, indicating that myoelectrodes
could be utilised and that Mr Ucuto was a good candidate for a prosthesis.
7
[18] Mr Grimsehl recommended a myoelectric prothesis given the high level of the
amputation. A body-powered prosthesis required the amputee to expend
energy to manipulate the cable and harness to allow the elbow to extend or flex
the terminal device (the hand to open or close).
[19] As Mr Ucuto has a very short stump, he would have less leverage available to
control the body-controlled prosthesis. It would be difficult for Mr Ucuto to
operate the body-powered prosthesis. Cosmetic prostheses have no
functionality and serve only for aesthetic effect.
[20] Mr Grimsehl built Mr Ucuto’s prosthesis in 2020. The main component, the
dynamic arm was obtained from the manufacturer, Ottobock, in Germany. The
dynamic arm includes the portion from the elbow to the wrist, the wrist joint, the
elbow joint and the charge. Additional items such as the cosmetic hand, the
greifer, the harness and the glove were also obtained from Ottobock. The
greifer hand has a stronger grip and is used for fine motor work as opposed to
the cosmetic hand.
[21] Mr Grimsehl manufactured the shoulder socket, the elbow and the wrist in his
workshop. The shoulder socket is made from a glass mould of the patient’s
shoulder. It is necessary then to secure the dynamic arm to the socket and to
fit on the other components.
[22] Mr Grimsehl consulted with Mr Ucuto approximately 40 times over the past five-
year period. He effected repairs to the prosthesis which were not covered by
the warranty. In the five-year period that Mr Ucuto has had the prosthesis, the
8
recommended refit was not done after the two-and-a-half-year mark, as Mr
Ucuto did not have the funds to do so.
[23] Mr Grimsehl explained the functionality of the prosthesis, with reference to a
photograph of Mr Ucuto’s. The harness goes across the shoulders to keep the
arm in place. The socket devised by Mr Grimsehl is placed over the shoulder,
which has sensors linked to the bi- and tricep muscles’ nerves, which are used
to operate the prosthetic arm. The prosthetic operates by the amputee deciding
what movement is to be made which triggers the sensors, sending a pulse to
the operation. This triggers a movement either to move the elbow joint up and
down or to open and close the hand joint.
[24] Mr Grimsehl demonstrated Mr Ucuto’s use of the prosthetic arm with Mr Ucuto
as a model. Mr Ucuto was able to lift his arm up and down, specifically lifting
the lower arm from the elbow joint and opening and closing his hand, as well
as rotating his wrist from right to left and left to right. Mr Ucuto demonstrated
that he is able to lift up a 500ml water bottle with the prosthesis, hold it in place,
open the bottle top with his left hand and then pour the water into a glass held
in his left hand. Mr Ucuto’s hand movements were smooth.
[25] Mr Grimsehl addressed his costing for the prosthesis. A refit of the prosthesis,
particularly the refit of the socket fitting over the shoulder, which houses the
sensors, is necessary every two-and-a-half years within the five-year period.
The 5% maintenance fee was to cover incidents and accidents which were not
covered by the warranty of the prosthesis.
9
[26] Mr Grimsehl recommended that a second myoelectric prosthesis be provided
to Mr Ucuto to cover for instances when the prosthesis was in for repairs or
maintenance. In addition, a second prosthesis would allow the amputee to
rotate the prosthesis every week. This would result in lower maintenance costs
overall.
[27] In considering the joint minute between Mr Grimsehl and Mr Kuhn and Fourie,
Mr Grimsehl identified that the only aspect of disagreement was the type of
spare prothesis. While Mr Kuhn recommended a myoelectric prosthesis for Mr
Ucuto, he was of the view that a cosmetic spare be made available to Mr Ucuto
and that a second myoelectric prosthesis was not required.
[28] In Mr Grimsehl’s view, given that loan units were not always available, it was
not fair for Mr Ucuto to be expected to wait up to six weeks (which was the last
waiting period the Plaintiff had to endure in the course of June 2025) while the
prosthesis undergoes maintenance or repair. In the six-week period, the
amputee would have to acquaint him or herself with the new prosthesis should
a cosmetic prosthesis be made available, which would not be the case if the
amputee had a second myoelectric prosthesis. After return of the prosthesis
from repairs, the amputee would then have to re -learn how to utilise the
prosthesis. In this period, the patient would lose functionality.
[29] The prosthesis reached the end of its life in January 2025. In June 2025,
Mr Grimsehl effected certain repairs to the prosthesis, as it was by then out of
warranty. The repairs effected by Mr Grimsehl was to bring the prosthesis back
to functionality. The repairs effected by Mr Grimsehl made the prosthesis
10
functional but it still had various glitches which impeded the functionality of the
prosthesis.
[30] Under cross-examination, Mr Grimsehl accepted that he assessed the
appropriateness of the prosthesis from the perspective of the wearer. In this
scenario, Mr Grimsehl considered the value to the wearer if it added function
and functionality to the wearer. Cost was, in Mr Grimsehl’s view, a secondary
function. These had to be within reason. Mr Grimsehl disputed the contention
that the objective costs had to be compared against the functionality observed
by the occupational therapist. Mr Grimsehl refuted that the necessity for the
prosthesis is evaluated against what the amputee cannot do without the
prosthesis. From Mr Grimsehl’s perspective he always considered how the
amputee’s functionality can improve with the use of a prosthesis. This
difference in perspective is central to the parties’ respective positions on which
prosthesis is best suited to Mr Ucuto.
[31] Under cross-examination, Mr Grimsehl accepted that he did not test Mr Ucuto
in his home environment before suggesting the myoelectric prosthesis. Mr
Grimsehl accepted that the myoelectric prosthesis is heavier than a cosmetic
prosthesis due to its mechanical parts. However, as there is a shoulder socket
and the prosthesis rests on the amputee’s shoulder and pulls the shoulder
down, the weight of the myoelectric prosthesis is not a factor.
[32] Mr Grimsehl disputed the high rate of rejection of prostheses by amputees. In
his experience, the acceptance of a prosthesis in lower income communities is
lower out of necessity. It was not suggested to Mr Grimselhl in cross-
11
examination that Mr Ucuto had rejected the prosthesis nor was it suggested
that Mr Ucuto did not use the prosthesis.
[33] Mr Grimsehl was questioned on various delivery notes from Ottobock in cross-
examination. Mr Grimsehl acknowledged that the delivery notes had been
completed by persons from his workshop. However, as the documents
presented to him were not dated, he was unable to identify the reason the
prosthesis had been sent to Ottobock or the reason and period it took for a
loaner unit to be provided. Mr Grimsehl iterated that the last time he requested
a loaner unit form Ottobock was in about May 2025; the waiting period for a
loaner unit was approximately six weeks. Mr Grimsehl accepted that, where a
scheduled maintenance is booked in advance with Ottobock, a loaner unit can
be secured. This is not possible, Mr Grimselhl testified, where there is an
emergency.
[34] Mr Grimsehl stated that, after 24 months without a refit, the inside of the
dynamic arm had buckled. This was caused by body odour, sweat and the
heat. Mr Ucuto was unable to secure funds for a refit, so none had been done
in the past five years.
Ms Motake
[35] The occupational therapist, Ms Motake, testified that she conducted a physical
assessment of Mr Ucuto in October 2010. This was some six months after the
accident. Ms Motake assessed Mr Ucuto’s functional ability against the
standard of a person with a b ilateral function. Ms Motake recorded that
12
Mr Ucuto was ridiculed by persons in his community because he does not have
an arm and, as a consequence, does not socialise and has poor self -
confidence. Ms Motake recorded that Mr Ucuto had adopted to perform certain
functions with his left hand, that he had previously either done with his right
hand or with both hands. Ms Motake recommended that Mr Ucuto be provided
with accessories to assist him with daily functions. Mr Ucuto’s adaptations have
been self-taught as he explores what he can and cannot do.
[36] Ms Motake has not assessed Mr Ucuto since he obtained his prosthesis, but
was present during a home visit in July 2025 when Ms Swart conducted various
tests. Ms Motake records that, in her interactions with Mr Ucuto, he depends
on the myoelectric prosthesis for his self-image and self-confidence as, when
he wears it, he feels normal. Mr Ucuto has explored the range of things he can
do with the prosthesis.
[37] Before he had the prosthesis, Mr Ucuto told her that he was ridiculed a lot and
called isandla, which means “small handed person”. Mr Ucuto told her, he
would still be considered a disabled person if he had a cosmetic prosthesis or
a body-powered prosthesis, which would be difficult for him to operate given
the shortness of the stump. Also, a body-powered prosthesis requires
leverage, which he does not have.
[38] Persons living in a township are expected to attend functions as these are
community building. If you do not attend, you are labelled as aloof. A body-
powered prosthesis would attract attention, which Mr Ucuto would find
demeaning and it would not be good for his self-esteem.
13
[39] Ms Motake observed that, at the home visit in July 2025, Mr Ucuto appeared to
be nervous and self-conscious in the presence of four women. Mr Ucuto’s
breathing was heavy and he was far slower and deliberate in his movements.
Ms Motake compared that to her recent observations of Mr Ucuto during a
meeting with the lawyers, where she observed Mr Ucuto taking a water bottle
and pouring water with fluid movements when he was not being closely
observed.
[40] Under cross-examination, Ms Motake confirmed that her initial and final reports
were in the same terms. Ms Motake did not conduct any tests with Mr Ucuto.
Mr Ucuto is not fully functional as he does not have bilateral use of the arm.
The prosthesis works to support the uninjured left arm. Ms Motake conceded
that, in a number of instances, the support and stability achieved by the
myoelectric prosthetic hand, such as buttering bread, opening a tin can and
cutting up food, can be achieved with a cosmetic prosthetic hand and a non-
slip mat.
[41] Ms Motake did not conduct any tests as to Mr Ucuto’s activities of daily living.
Ms Swart and Ms Motake did not discuss the conclusion reached by Ms Swart,
that Mr Ucuto would be serviced just as well by a cosmetic prosthesis.
Mr Brummer
[42] The architect, Mr Brummer, testified in relation to the accommodation
requirements for a person disabled in the manner of Mr Ucuto. His report
recorded two options, firstly, the alterations and additions to a model 3 -
14
bedroomed, 1-bathroomed township home and, secondly, for the erection of a
new 3-bedroomed, 1-bathroomed home. The report is based on a concept
house. Mr Brummer did not conduct a site inspection of Mr Ucuto’s home
where he resides at his aunt’s house in Tsakane. Mr Brummer’s design was
aimed to assist the Plaintiff to live a full life. This would entail adaptation to the
current living space, by having ramps and grab bars to assist mobility and non-
slip tiles and water controls to deal with stability.
[43] Critical aspects to consider when designing a space for a disabled person is
that there is a free flow of space to accommodate the disability. This is
particularly important in the kitchen space as this is often where a family
congregates on a daily basis.
[44] The concept home allowed for a third bedroom, which was also called a
consultation room, as a space where Mr Ucuto could receive any form of
therapy. This allocation did not require an extra bedroom but was based on a
standard home with three bedrooms. The allocation of a garage was based on
the assumption that Mr Ucuto would have a motor vehicle. The 2025 report
merely updates the cost calculations.
[45] When challenged in cross-examination that the concept residence was more
appropriate for a person who is disabled and using a wheelchair, Mr Brummer
persisted that his design was correct as an amputation affects a person’s
balance. An amputee’s balance is less stable than that of an able -bodied
person.
15
[46] Mr Brummer, in understanding the scope of his brief, considered the
occupational therapist’s report, who identified the functionality limitations of
Mr Ucuto. This informed his recommendations for a grab rail, extra storage,
the spatial arrangement of the home and sliding doors for cupboards instead of
swing doors.
[57] Mr Brummer conceded that had he been aware of Ms Swart’s view that there
was limited evidence of functional integration of the prosthesis and that Mr
Ucuto would be better served with a high-quality cosmetic prosthesis with
passive stabilisation features, he would have designed a different concept
house. However, Mr Brummer testified that the concepts of stability and
mobility should not be confused. The concept house meets Mr Ucuto’s mobility
limitations.
Ms Rich
[47] Mobility expert and occupational therapist, Ms Rich, testified on the costs
required for adaptive driving by a person such as Mr Ucuto. Ms Rich accepted
the assumptions of the initial mobility report, which was written by a Mr
Rademeyer in 2015. Ms Riche was the author of the addendum to the report,
updating the calculations. While Ms Riche states that Mr Rademeyer has
retired from the practice and now acts as a consultant, no explanation was
provided for his failure to testify.
[48] The expert opinion filed of record was that of Mr Rademeyer who did not testify.
There is little value in Ms Rich’s evidence, which I address below.
16
Mr Ucuto
[49] Mr Ucuto testified that he was born in Mozambique but came to South Africa in
2003. In April 2010, when he fell out of open doors of a train, he was, at that
time, employed on a construction site and living in Tembisa. After the accident,
he moved to Tsakane to live with his aunt. He was fitted with the prosthesis in
2020. He learned how to use the prosthesis with Mr Grimsehl in Auckland Park.
He practised using the arm and received training in 2020 to 2021.
[50] Mr Ucuto testified that, on three occasions, he received a visit at his house from
the occupational therapist, Ms Swart. The first one was in 2021 and there were
two in 2025.
[51] Mr Ucuto was asked how he felt about his injury and he said he felt hurt. He
has no strength as he has no right hand. He wished he could do what other
young people can do. He wanted to stay with his children, to be able to look
after them and wanted them to grow up with him. Before he had the prosthesis,
life was very difficult. Even eating was difficult. He had to peel a banana and
open a water bottle with his teeth. He could not cut food on his own. He was
ridiculed and called names. Mr Ucuto testified that the prosthesis helps him
cope at home, it helps him to balance when he wants to do something or eat
something, it helps him in doing everything to support his left hand. Earlier this
year, he did not have the prosthesis for two to three weeks while it was being
fixed in Germany. Mr Ucuto found it very difficult to cope without the prosthesis.
17
[52] Mr Ucuto acknowledged that he has never had a driving licence but he said he
bought himself a Nissan hard body truck after the accident. Someone else
drove the car for him, but that person damaged it. Mr Ucuto could not
remember the exact date of purchase, except that there was a payment from
the Court.
[53] Mr Ucuto was unclear whether he had received a loan prosthetic unit at any
time. He acknowledged that, at one point, he had a temporary prosthesis, but
he said it did not work. Mr Ucuto says he never wore it except when he went to
church. It was, as he said, a decoration.
[54] Mr Ucuto stated that when he travels by taxi, he has no balance when the taxi
shakes and he is embarrassed when people look at him.
[55] In cross-examination, the Defendant’s counsel read various extracts from Ms
Swart’s report and asked Mr Ucuto to comment on the report. This required the
interpreter to read the extract then translate the extract for Mr Ucuto to respond.
The answers Mr Ucuto gave were at times nonsensical and/or did not relate to
content of the paragraph which had been read in English. Mr Ucuto disputed
the content of certain paragraphs of Ms Swart’s reports. It was not clear
whether the interpreter had correctly translated the relevant paragraph from Ms
Swart’s report or whether the witness understood what was asked of him. It
was not clear to me where and what had been lost in translation. In any event,
little value can be attached to this modality of cross-examination. Mr Ucuto was
asked to comment on an expert report. Mr Ucuto is not an expert witness; he
is the injured party. Mr Ucuto was not called to testify as an expert. His view
18
of Ms Swart’s report is immaterial to determine what type of prothesis would be
suitable and what extent of damages he should be awarded.
[56] Mr Ucuto’s evidence became clearer when the videos taken by Ms Swart were
played to him. From the first video, showing Mr Ucuto picking up a bottle with
the prosthesis and attempting to pour water, Mr Ucuto stated that the charge in
the prosthesis was not a hundred per cent effective and the power was not
enough. Mr Ucuto testified that he told Ms Swart this. He is not able to use the
prosthesis to drink water as he cannot lift the prosthesis high enough to reach
his mouth. From all the videos taken by Ms Swart in September 2021, Mr
Ucuto’s response was that the prosthesis was not properly charged and the
arm was not working in the normal way.
[57] Mr Ucuto refuted that the good condition of the greifer charger was because it
was never used. Mr Ucuto testified that he took care of the charger and put it
away after use.
[58] With each task that Ms Swart asked Mr Ucuto to perform, he understood that
he was to use his right hand, that is, the prosthesis. When it was pointed out
that his movements were not smooth, he kept saying that he was trying and
that he was training himself.
[59] Mr Ucuto stated that he uses the prosthesis to do things like tying his shoelaces
but does not use it to put on his trousers or t-shirts. He wears the prosthesis
all the time and only removes it when he sleeps.
19
[60] Mr Ucuto’s response to the videos taken in 2025, that he moved deliberately,
slowly and took time, was to state that the prosthesis is slow and does not
operate like his hand.
[61] Mr Ucuto’s competence with the prosthesis from the videos taken by Ms Swart,
in 2021 and 2025, differs from those taken while Mr Ucuto was still in training
in 2021. These were taken at the rehabilitation centre in Auckland Park. Then
his movements were more fluid. Similarly, the fluidity of Mr Ucuto’s use of the
prothesis is evident in the video taken by his cousin in March 2025, of Mr Ucuto
sharing a family meal. The latter showed Mr Ucuto using his prosthesis in a life
experience in real time and not the assessment in the presence of a therapist.
EVIDENCE FOR THE DEFENDANT
Mr Clark
[62] The Defendant’s first witness was Hugh Clark, a service manager at Ottobock.
He testified that loaner prosthetic units were available for clients when the units
were still under warranty. The units would be made available within one to two
weeks. However, the waiting time to obtain loaner units for customers whose
prostheses were out of warranty, or who wanted to consider the use of the
prosthesis, could be longer. The process required a request to the
Johannesburg office, which would make the request to Germany, which would
then make available the loaner unit. The general delivery time for a loaner unit
is one to two weeks. Mr Clark was unaware as to what Ottobock’s usual policy
20
is. The service of the unit had a turnaround time of four to six weeks, depending
on the nature of the service.
[63] Unfortunately, Mr Clark was not involved in the receipt of prostheses and
sending them in for repairs. Mr Clarke had no knowledge when and whether
Mr Ucuto was provided with loaner units. Mr Clarke had no knowledge what
transpired in this matter. Mr Clark’s evidence is of limited value.
Ms Swart
[64] Ms Swart, the Defendant’s occupational therapist, stated that she assessed
Mr Ucuto on three occasions. The first occasion was in 2015 at her rooms and
the second and third occasions were home visits at Mr Ucuto’s home, in
September 2021 and in July 2025. 4
[65] Ms Swart testified that, as an occupational therapist, she is a functional expert.
In assessing Mr Ucuto, Ms Swart determined whether Mr Ucuto could
meaningfully perform tasks, namely, activities in daily living, using the
prosthesis. When she spoke of functional usage, she meant the ability to
complete a task in a reasonable, practical time that does not require excessive
cognitive thought. The task is the function, while the prosthesis is the tool to
complete the function.
4 See the reported consultations and evaluation in 2015, 2021 and 2025, Caselines 005-54 to 005-
100 (7 January 2025) 005-101 to 005-110 (9 October 2021) 005-111 to 005-126 (19 July 2025)
21
[66] Ms Swart analysed Mr Ucuto’s capacity to complete a task by considering his
strength, his coordination and the environment in which he operated. Her
assessment was a triangulation of her task analysis, interviews with the client
and his support system. She had Mr Ucuto undergo a number of functional
tests.
[67] In her first report, Ms Swart did not recommend a prosthesis because of the
position of the injury. Mr Ucuto had lost proprioception and there had been a
long time delay between his injury and his self -rehabilitation. Ms Swart
expressed the view that a prosthesis should be fitted as soon as possible before
the amputee develops a level of independence with the remaining limb. By
2015, he was mainly independent, using his left hand.
[68] In September 2021, during the home visit, Ms Swart was of the view that
Mr Ucuto had not yet integrated the prosthesis into his daily activities. He was
still mainly dependent on his left hand and arm.
[69] Ms Swart’s observations at the third assessment in 2025, were that Mr Ucuto’s
movements with the prosthesis had not improved, using the prosthesis was
laboured and he showed difficulties with the control of the device. Ms Swart
took the good condition of the prosthesis as an indicator that it was not
frequently used but only used on occasions. This Mr Ucuto disputed. In Ms
Swart’s view, Mr Ucuto’s functionality has decreased. This proposition was
never put to Mr Ucuto to respond to.
22
[70] In Ms Swart’s view, there has not been significant change in Mr Ucuto’s
functionality with or without the prosthesis since her first assessment in
November 2015. Ms Swart based this on Mr Ucuto’s capacity to perform a
daily living task – Mr Ucuto has not integrated the prosthesis into his daily living
tasks and activities. The tasks he performs with the prosthesis were tasks he
was able to perform without the prosthesis in her first evaluation in 2015. The
myoelectric prosthesis has thus not increased Mr Ucuto’s functionality.
[71] In the intervening period between the train accident in 20 10 to when the
prosthesis was fitted in 2020, Mr Ucuto had reached an excellent level of
functionality with his left hand. In Ms Swart’s assessment, Mr Ucuto requires
the prosthesis for psychological reasons to avoid the “loose sleeve” fear, which
fear can be met by a cosmetic prosthesis. Mr Ucuto does not require a
functional prosthesis, given his excellent adaptation to using his left hand for all
his necessary daily living tasks.
[72] When considering the various short videos Ms Swart took during her
assessment of Mr Ucuto, Ms Swart insisted, under cross-examination, that
each task Mr Ucuto performed and/or completed with the prosthesis was a task
that he could do just as adequately or competently with his left hand.
[73] Ms Swart testified that it was painful to watch Mr Ucuto performing tasks with
the prosthesis, given his awkwardness in operating the prosthesis and the
length of time it took for him to complete each task. In Ms Swart’s opinion,
Mr Ucuto has reached his maximum rehabilitation potential. He does not have
automatic or fluid movements with the prosthesis. Mr Ucuto’s shoulder mobility
23
is decreased with the myoelectric prosthesis. He has more shoulder mobility in
his right shoulder when not wearing the myoelectric prosthesis.
[74] Ms Swart challenged Ms Motake’s opinion that the prosthesis assists Mr Ucuto
with his loss of functionality, including the psychological loss he feels.
[75] Ms Swart’s opinion, as described above, were not aspects canvassed with Mr
Ucuto in cross-examination. Mr Ucuto was not given an opportunity to respond
to Ms Swart’s conclusions, namely that his functionality has not increased in
the five-year period.
[76] In Ms Swart’s opinion, Mr Ucuto is not wearing the prosthesis. At best, she
testified Mr Ucuto only wore his prosthesis some of the time. Ms Swart bases
this view on the lack of wear and tear, such as to the socket and the prosthetic
hand. She denied that Mr Ucuto’s assertion that he wore it all the time could
be correct.
[77] Ms Swart’s evidence was that Mr Ucuto was predominately concerned with his
appearance as a disabled person. A cosmetic limb and hand would mean Mr
Ucuto no longer has to suffer the indignity of a loose or empty sleeve and would
provide him with a counter-balance to hold items with when utilising his left hand
in bimodal activities. Ms Swart conceded that no prosthesis could compensate
for the hand that Mr Ucuto had lost. The best a prosthesis could do, is to
compensate for his loss of functionality.
24
[78] Ms Swart took issue with Ms Motake and Mr Grimsehl’s opinion that the
prosthesis assisted Mr Ucuto with balance. In Ms Swart’s opinion, Mr Ucuto
had excellent balance without the prosthesis when it came to sitting, standing,
squatting and running, so both his static and dynamic balance, and there was
no improvement to his balance with the prosthesis. These assertions of Ms
Swart were not aspects that were canvassed with either Ms Motake or Mr
Grimsehl, in cross-examination.
[79] Ms Swart disputed that the removal of the myoelectric prosthesis after using
one for a five-year period would negatively affect Mr Ucuto.
[80] Ms Swart was unaware, at the time she conducted her evaluations both in
November 2021 and in July 2025, that Mr Ucuto had not had the use of his
prosthesis for some time before the assessment. The prosthesis was sent for
repairs to Germany in 2021 for a period of three months prior to the November
2021 assessment. In 2025, Mr Ucuto did not have a prosthesis for a period of
six weeks while his prosthesis was undergoing repairs in Germany. There were
no loaner units available. This evidence is uncontested.
[81] In Ms Swart’s opinion, the hiatus in Mr Ucuto having the prosthesis before the
assessment should not have affected her evaluation. In her opinion, where a
patient does not have the use of a prosthesis for an extended period of time,
such patient will return to the functionality the patient had prior to the hiatus
within a period of about a week.
25
[82] Ms Swart’s failure to consider the hiatus in Mr Ucuto’s use of the prosthesis
prior to her 2021 and 2025 assessment is concerning. Her opinion is premised
on the evaluation conducted a week after Mr Ucuto recommenced use of the
prosthesis. There is no evidence that Ms Swart’s assessment was conducted
a week after Mr Ucuto recommenced use of the prosthesis. Ms Swart’s report
is silent on this score.
[83] Ms Swart acknowledged that she did not expect an upper arm amputee like Mr
Ucuto to be able to open a bottle with the prosthesis. Nor did she expect that
Mr Ucuto would be able to iron. Ms Swart did not explain why Mr Ucuto was
assessed for functionality on tasks he was not expected to execute. Ms Swart’s
report did not record that the completion of such tests was not expected from
an upper arm amputee.
[84] Ms Swart did not accept that her report failed to provide a balanced view and
that it was not objective. Ms Swart was of the view that the question of
objectivity had to be decided by another occupational therapy professional with
experience. Ms Swart was not prepared to comment that her report had not
been considered objective by Ms Motake.
[85] I agree with the Plaintiff’s representative that Ms Swart’s report only highlights
her negative assessment of Mr Ucuto and not the positive. Ms Swart’s
explanation, that she only recorded the negative aspects in her report, as these
raised flags that Mr Ucuto’s functionality was below average, does not meet
muster. Ms Swart has not articulated in her report that, where no flag is raised,
the functionality of Mr Ucuto meets the standard of the test Mr Ucuto was
26
required to perform. The role of an expert is to assist the Court to understand
issues within the realm of the expert’s expertise. Absent an expert laying the
parameters of the tests performed, the recordal of only the negative aspects in
the results and conclusions drawn reflect a bias. It does not assist the Court.
[86] Under cross-examination in December 2025, Ms Swart was adamant that
certain cosmetic prostheses have limited functionality and, as a result, such a
prosthesis would be adequate for Mr Ucuto’s needs. Ms Swart testified that a
functional cosmetic prosthesis is sophisticated and is capable of small
movements with manual manipulation of the functional limb. The difference
between such a functional cosmetic prosthesis and a myoelectric prosthesis is
that the myoelectric prosthesis allows the patient to grip and to flex the hand.
[87] This is not an aspect that Ms Swart addressed in her evidence-in-chief. When
asked by the Court to identify where she addressed such a prosthesis in her
2021 and 2025 reports, Ms Swart conceded she had not addressed the
question of a functional cosmetic prosthesis in either report. This is not a matter
that was canvassed in cross-examination by counsel for the Defendant, with
either the orthotist, Mr Grimsehl, Mr Ucuto, or with the occupational therapist,
Ms Motake. There is no mention of a cosmetic prosthesis with limited
functionality in the July 2025 joint minute of the occupational therapists, Ms
Motake and Ms Swart.
[88] Mr Grimsehl was the only technical witness in that field who could assist the
Court in determining whether a cosmetic prosthesis with limited functionality
was better suited for Mr Ucuto than a myoelectric prosthesis. The suitability of
27
a cosmetic prosthesis with limited functionality is not addressed in the Grimsehl-
Kuhn minute. Ms Swart did not assess Mr Ucuto wearing a cosmetic prosthesis
with limited functionality. There is no evidence before me that such a cosmetic
prosthesis with limited functionality is at all suitable for Mr Ucuto. Ms Swart’s
opinion as to Mr Ucuto’s suitability for and capacity to utilise such a prosthesis
is speculative. I do not accept Mrs Swart’s opinion as to the suitability of a
cosmetic prosthesis with limited functionality for Mr Ucuto.
[89] The parties agreed on the actuarial calculations of all the future medical
expenses including costs of two myoelectric prosthesis, as proposed by Mr
Grimsehl and one myoelectrical pros thesis with a cosmetic prosthesis
proposed by Mr Kuhn. Absent from the agreed actuarial calculations is the
quantification of damages for a cosmetic prosthesis with limited functionality.
There is no quantification of damages for a cosmetic prosthesis with limited
functionality.
[90] It appears to me that the introduction into evidence of a functional cosmetic
prosthesis, an issue canvassed for the first time on day six of trial, is not
incidental, but rather is an intentional attempt to make out a case not made on
the pleadings, not considered by the expert orthotists and prosthetists or
canvassed in evidence-in-chief or tested in cross-examination. It is litigation by
ambush. I say no more.
28
IS THE DENDANT BOUND BY THE GRIMSEHL-KUHN JOINT MINUTE
[91] The role of an expert witness is to assist the Court by laying a factual basis for
their conclusion and explain their reasoning to the Court. Courts are not bound
by the view of any expert, including that contained in the joint minute. Courts
make the ultimate decision on issues on which the expert provides opinion.5
[92] In Glenn Marc Bee v The Road Accident Fund,6 the Supreme Court of Appeal
approved the position taken by Sutherland J in Thomas v BD Sarens (Pty) Ltd:7
“Where two or more experts meet and agree on an opinion, although the parties are
not at liberty to repudiate such an agreement placed before the court, it does not follow
that a court is bound to defer to the agreed opinion.”
[93] Where a litigant does not wish to be bound by the limitation of the agreement
of the joint minute of experts, fair warning must be given to the other litigant.8
[94] The Defendant gave notice to the Plaintiff of its repudiation of the conclusion in
the Grimsel-Kuhn report that “Mr Ucuto is a functional prosthetic user. He
excels in functional use of his prosthesis in activities of daily living and uses the
prosthesis for the function it was designed and manufactured to do.” The joint
practice note records the status of this minute as an issue for determination.
5 Road Accident Appeal Tribunal and Another v Gouws and Another [2018] 1 All SA 701 (SCA), at
para 33 6 2018 (4) SA 366 (SCA), at para 24 7 2012 ZAGPJHC 161, at para 30 8 Bee v The RAF, at para 66
29
[95] The Defendant conducted the trial on the basis of this repudiation. Relying on
the opinion of their occupational therapist, Ms Swart, the Defendant asserted
that Mr Ucuto would be better suited to a cosmetic prothesis, as the myoelectric
prosthesis did not increase Mr Ucuto’s functionality. After seven days of
evidence, the Defendant made an about turn in its written and oral submissions,
conceding in principle that Mr Ucuto is entitled to a myoelectric prosthesis.
[96] In light of the Defendant’s belated concession, it is not necessary for me to
determine whether the Defendant is bound by the Grimsehl-Kuhn minute.
WHAT DAMAGES ARE TO BE AWARDED TO MR UCUTO
[97] The Plaintiff claims the sum of R31 388 076.00, in respect of the capitalised
costs of the following medical and related expenses:
1. two myoelectric prostheses to be replaced every five years
2. four cosmetic gloves per annum (two per myoelectric prosthesis)
3. maintenance costs calculated at 5% per annum of the cost of the
prosthesis
4. one refit for the prosthesis every five years
4. a Greifer attachment for the prosthesis
30
6. psychiatric treatment and psychotherapy costs
7. occupational therapy costs
8. travel costs to attend to the psychiatric psychological and occupational
therapy consultations
9. various assistive devices to accommodate his disability
10. mobility costs for an adaptive motor vehicle
11. construction costs, alternatively the additions and alterations to his
residence
[98] The purpose for awarding damages is to:
“compensate the victim in money terms for the loss suffered. A plaintiff must allege
and prove the quantum of damages suffered because of the defendant’s wrongful act.
In other words, in this instance the plaintiff must lead evidence which establishes the
reasonable and necessary cost of future medical and hospital expenses.”9
[99] Whether these damages the Plaintiff seeks are reasonable and necessary are
subject to the test for awarding medical expenses:
“whether it has been established on a balance of probabilities that the particular item
of expenditure is reasonably required to remedy a condition or to ameliorate it. Where
9 Mashinini v MEC for Health, Gauteng 2023 (5) SA 137 (SCA), at para 9
31
(as in Broom and Another v Administrator of Natal 1966 (3) SA 505 (D) and Knight v
Conroy 1948 (1) E6 QOD 444 (T), the expenditure was incurred for a different, albeit
commendable, purpose or is out of proportion to the condition it was incurred to
eliminate or abate, it will be irrecoverable. It will then not be regarded as reasonable.
Of course, in the final analysis, it is the function of the Court to determine whether the
expenditure, past or proposed, measures up the criteria of reasonableness. In so
doing, it will be guided, inter alia, by the evidence.10
[100] The awarding of medical damages is a balancing act between whether the
particular item of expenditure is reasonably required to remedy the condition or
ameliorate it balanced against whether, while the item is commendable, its
purpose is out of proportion to the condition it seeks to eliminate or abate. In
making this determination, regard is to be had to the quantification of general
damages as stated in Dhlamini v Government of the Republic of South Africa:
“If I were to have assessed the damages for the non-patrimonial elements in isolation,
I would have arrived at an award considerably in excess of the figure at which I have
arrived. I have grappled with the question what, in law, logic or equity, underlies my
conviction that there must be some interaction between the awards for patrimonial loss
on the one hand and the award for non-patrimonial loss, on the other. Whatever may
be the rationale in principle or in other cases, it appears to me, in this case, and on its
particular facts, that I cannot ignore the very substantial awards made [for special
damages] when I come to assess general damages for pain and suffering, loss of
amenities of life, disability and disfigurement. Those awards were considered
reasonable for the very reason that they served to ease the plaintiff's painful shuffle
10 Dhlamini v Government of the Republic of South Africa 1986 WLD per Kriegler J as reported in
Corbett and Buchanan “Quantum of Damages in Bodily & Fatal Injury Cases” 2nd edition, Vol III
(1989) at p 554
32
across this mortal coil. They were intended to reduce the suffering, the loss of
amenities of life and general disablement that the plaintiff will have to live with. I cannot
ignore them when assessing those very elements under what is a different head of
damage, but forms part of one and the same award.”11
[101] The parties’ 2015 agreement on general damages does not distinguish
between the amount allocated for pain and suffering and the amounts allocated
for loss of the amenities of life, disability, and disfigurement. The quantum for
the general damages is included in the lump sum for past and future loss of
earnings. The calculation of the amount was not subject to judicial scrutiny. The
determination of the quantum for general damages was not a matter for me to
decide. There are no facts for me to apply the considerations for the distinction
between special and general damages as set out in the decision of The MEC
for Health, Gauteng Provincial Government v AAS obo CMMS,12 where the
Supreme Court of Appeal recognised as correct, the approach in Dhlamini.
[102] Consequently, I will determine the quantification of these special medical
expenses, without reference to the award of general damages which was not a
matter before me.
11 Ibid at 587 12 2025 (6) SA 152 (SCA) at paras 55 to 58
33
Myoelectric prosthesis or a cosmetic prosthesis
[103] It is trite that orthotists and prosthetists determine the suitable prosthesis
required by a patient, while the occupational therapist assesses the functionality
of the patient.
[104] The Grimsehl-Kuhn joint minute concluded that:
“7.1. the prosthesis is well-worn and shows signs of daily regular use;
7.2. given that the amputation stump leaves such a short residual limb, it can
be classified as a shoulder disarticulation that necessitates a specific
socket design that eliminates the shoulder movement and range of
movement;
7.3. the function of the prosthesis is not to be the dominant hand;
7.4. the prosthesis is indicated to, firstly, provide an opposing force and,
secondly, provide functions more basic than the sound side;
7.5. Mr Ucuto will not be able to functionally operate a body -powered
prosthesis with ease with his short residual limb, functionally classified
as a shoulder disarticulation;
7.6. ………
34
7.7. Mr Ucuto is more functional with the use of his myoelectric prosthesis
than he is without his prosthesis;
7.8. the use of a body-powered prosthesis will require a lot more energy and
effort to operate than Mr Ucuto’s current myoelectric prosthesis.”
[105] While Kuhn did not testify, the Defendant did not challenge these conclusions
in cross-examining Mr Grimsehl.
[106] The 2016 Grimsehl-Kuhn minute records the agreement that Mr Ucuto is a good
candidate for a prosthesis and recommends a myoelectrical prosthesis, subject
to Mr Ucuto’s acceptance of the prosthesis. The rejection rates do not apply to
Mr Ucuto as he is a proficient prosthetic user. The Defendant raised no
objections against this report. the Defendant did not repudiate or give notice of
repudiation of any portion of this report.
[107] Mr Ucuto received his prosthesis in 2020 and has used it in his daily living ever
since. There was no evidence that Mr Ucuto has rejected the prothesis. There
is no evidence that he does not use it nor is there evidence that it does not
improve his quality of life.
[108] Mr Ucuto’s skill with the prosthesis was demonstrated in Court. Various video
clips were used in Court to demonstrate Mr Ucuto’s level of proficiency with the
prosthesis. Ms Motake observed that Mr Ucuto’s level of proficiency was higher
when he was in consultation with his legal team when compared to when he
was being assessed. This was apparent in the video taken by Mr Ucuto’s
35
cousin, recording him in a familiar family environment. Ms Motake was not
challenged on this opinion.
[109] I do not accept Ms Swart’s opinion that Mr Ucuto does not use or rarely uses
the prosthesis. Ms Swart conceded that her report only recorded the instances
where Mr Ucuto could not use the prosthesis or used it belabouredly, as these
were “red flags”. Ms Swart conceded that she assessed Mr Ucuto for functions
she would not expect an upper arm amputee to perform, such as opening a
bottle or ironing. Yet these were two instances Ms Swart used to highlight
deficiencies in Mr Ucuto’s functionality with the prosthesis. Given these
concessions belatedly made, I do not accept Ms Swart’s opinion that Mr Ucuto
has not reached a competent level of functionality with the prosthesis.
[110] The Defendant conducted the trial on the premise that the myoelectrical
prosthesis was not appropriate to be awarded to Mr Ucuto. Once the Defendant
made the concession that a myoelectric pros thesis was the appropriate
prosthesis, little weight can be given to the evidence in support of the premise
that it was not.
[111] The Plaintiff is awarded the capitalised costs of one myoelectric prothesis every
five years. The undisputed evidence was that Ottobock, the manufacturer of
the myoelectric prosthesis, provides a five-year warranty. Ottobock makes
available loaner units for customers when their prosthesis is repaired or
serviced under the warranty. There would be limited occasions when repairs
would not be covered by the warranty. The provision for maintenance costs to
36
cover costs falling outside the manufacturer’s warranty is both reasonable and
necessary.
[112] In the limited periods that loaner units are not made available by Ottobock or
the repairs fall outside the warranty, it is reasonable to make provision for a
spare prosthesis. Mr Grimsehl’s evidence was that two prostheses of the same
type is optimal. I find that given the limited periods when Mr Ucuto will be
without his myoelectric prosthesis or a loaner myoelectrical prosthesis, Mr
Ucuto will be adequately compensated by a cosmetic prosthesis. The provision
for maintenance costs for the cosmetic prosthesis is both reasonable and
necessary.
[113] The joint minute of the orthopaedic surgeons records that a stump revision may
be required. Such a revision would require a prosthesis refit. Even without
taking such stump revision into account, the Grimsehl-Kuhn minute records
agreement for a prosthesis refit every 2.5 years. It is plain that a person’s body
shape changes as one ages. The provision for a prosthesis refit every 2.5 years
is reasonable and necessary. The provisions relate to both the myoelectric and
the cosmetic prosthesis.
[114] The myoelectric prosthesis is fitted with a hand and a glove for general
movement or griefer for fine motor movements. I find that these are necessary
and reasonable to compensate Mr Ucuto for the loss of his arm and hand.
37
‘Associated costs’ of an adaptive motor vehicle and accommodation
[115] The Plaintiff’ claims damages for the associated costs, namely the provision of
an adapted motor vehicle and the costs associated with a residence specifically
built to accommodate his disability, alternatively adjustments to his current
residence to accommodate his disability. The claim for these associated costs
are not foreshadowed in any of the expert reports filed on behalf of the Plaintiff.
This is in contrast to the facts in Phillip Mzolo v PRASA,13 where such costs
were included in the damages award. In the Phillip Mzolo matter the necessity
for both accommodation and a motor vehicle was addressed by both the
orthopaedic surgeon and the occupational therapist in their expert reports.
[116] PRASA disputes that either of these expenses are appropriate or reasonable.
I agree. Mr Ucuto has lived with his aunt for the past 15 years since his injury
without incident, a home which has not been adapted to accommodate his
disability. Mr Ucuto does not have a driver’s licence and never drove prior to
his accident. His employment as a general worker in the construction industry,
prior to the accident did not require that he acquire either a driver’s licence or a
motor vehicle.
[117] No evidence was led in support of these claims for damages. The Plaintiff has
failed to discharge his burden of proof that these claims are reasonable and
necessary.
13 Unreported decision of the Gauteng Local Division, Johannesburg, 2010/34255 handed down on
9 March 2027
38
Quantification of future medical expenses
[118] The parties reached agreement on the future medical expenses. I include these
amounts in the damages award.
[119] The full extent of the damages awarded are those quantified in the schedule
Appendix 1 “Capitalised value of Future medical and related expenses” as
calculated from the report of Mr Kuhn ,14 excluding damages related to
accommodation and a motor vehicle, and subject to the contingencies, I
address below.
What contingency should be deducted from the damages award
[120] Contingencies discount the vicissitudes of life. The extent of discount and the
determination of a suitable contingency deduction falls within the discretion of
the Court. In Dlamini v The Road Accident Fund,15 the Court applied the
guidelines referred to by the author, Koch, in The Quantum Yearbook, which
calculated normal contingencies at a deduction of 5% for past life and 15% for
future life.
[121] The Plaintiff contends that no contingency should be applied to the award. The
Defendant, by comparison, contends for a sliding scale from a 50% contingency
in respect of some costs to a 15% contingency in respect of other costs.
14 Caselines 006-38 to 006-40 15 [2015] ZAGPPHC 646
39
[122] The Defendant’s main contention for disputing Mr Ucuto’s entitlement to the
myoelectric prosthesis, and the application of a 50% contingency, was that Mr
Ucuto was well adjusted to his disability before the prosthesis was provided. In
a similar vein, the Defendant contends that a 25% contingency should be
applied to the prosthetic refit. The Defendant contends that none is needed as
there has been no refit since Mr Ucuto acquired the prosthesis more than five
years ago.
[123] It was uncontested that Mr Ucuto did not have the financial means to secure a
prothesis before the actualisation of the 2016 order, in January 2018. Given
Mr Ucuto’s meagre financial circumstances, his adaptation to his disability, was
a matter of necessity. The Defendant’s position seeks to justify a lower award
of damages based on the necessity of the circumstances of an indigent litigant
is cynical.
[124] The Defendant’s further contention for a 50% contingency to the capitalised
cost of a myoelectric prosthesis is based on Ms Swart’s opinion that Mr Ucuto
does not use the prosthesis or does not use it regularly, as it is in good
condition. I do not accept Ms Swart’s opinion. It is contrary to the Grimsehl-
Kuhn report. Mr Ucuto testified he wears it daily.
[125] The Defendant argues that the allocation for maintenance costs should be
reduced by a 25% contingency, as the prosthesis is covered by a warranty from
the manufactures, Ottobock. The Defendant argued the Plaintiff damaged the
prosthesis in a way not covered by the warranty, which was indicative that the
Plaintiff was not caring for the prosthesis.
40
[126] Apart from the fact that these contradictory submissions by the Defendant
cannot be true at the same time, the evidence does not support the Defendant’s
arguments. The uncontradicted evidence of the Plaintiff is that he does use the
prosthesis and uses it every day. There is no evidence that the Plaintiff had
damaged the prosthesis. Mr Ucuto was not given an opportunity to respond to
this contention on which the Defendant relies as a basis to substantially reduce
Mr Ucuto’s quantum of damages.
[127] The vicissitudes of life call for the application of a contingency. There is no
evidence to convince me to depart from the normal contingency of 15% for
future expenses. I am of the view that a 15% contingency for all the prosthetic
related expenses and psychiatric treatment is reasonable and appropriate. No
contingency is applied to the agreed future medical expenses , namely
psychological counselling, the occupational therapy, domestic assistance and
the costs for assistive aids and equipment.
[128] Based on the agreed actuarial calculations, the Plaintiff is awarded damages in
the sum of R5,127,593.23 comprising:
Future medical expenses (lines 1-20) R211,508.00
Psychiatric treatment (line 64) R152,115.00
Less 15% contingency -R22,817.25
Subtotal: psychiatric expenses R129,297.75
Myoelectric Prosthesis (lines 21-34) R11,502,893.90
Prosthetic refit (lines 35-40) R973,222.07
41
Cosmetic Prosthesis (lines 41-49) R1,071,826.58
Annual costs (lines 50-51) R79,444.00
Annual costs (lines 52-53) R740,988.00
Cosmetic arm annual costs (lines 54-55) R73,816.00
Annual costs (lines 56-57) R1,071,256.00
Prosthetic refit (lines 58-63) R621,119.00
Subtotal prosthesis expenses R16,134,565.55
Less 15% contingency -R2,420,184.83
Subtotal: prosthetic expenses R13,714,380.72
Total: future medical + psychiatric + prosthetic R14,055,186.47
Less: 50% apportionment -R7,027,593.23
Less payments received -R1,900,000.00
Total Damages R5,127,593.23
COSTS
[129] The Plaintiff has been substantially successful. It is trite that costs should follow
the result. The purpose of an award of cost to a successful litigant is:
“to indemnify him for the expense to which he was put through having been unjustly
compelled to initiate or defend litigation as the case may be. Owing to the operation of
taxation, however, such an award is seldom a complete indemnity, but that does not
affect the principle on which it is based.”16
16 Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at p 488
42
[130] The Plaintiff argued that he should be awarded costs on an attorney client
scale. In light of the manner the Defendant litigated this matter, I agree.
[131] The Plaintiff instituted these proceedings in 2010. The Defendant conceded
the merits. The parties agreed that the Plaintiff would be entitled to his proven
damages, subject to a 50% apportionment. The 4 November 2015 court order
records this agreement, in relation to settlement of the general damages and
past and future loss of earnings. On 26 November 2016, Messrs Grimsehl and
Kuhn agreed that Mr Ucuto should be awarded a myoelectric prosthesis,
subject to his acceptance of the prothesis. The 6 December 2016 court order
required the respondent to provide and pay for the Plaintiff’s first prosthesis,
together with the costs of the prosthetic rehabilitation. The Defendant paid the
plaintiff R1.6 million for the provision of the prosthesis in January 2018.
[132] The Defendant’s repudiation of the Grimsehl-Kuhn minute is recorded in the
July 2025 pretrial minute.
[133] In Bee, Rogers AJA cautioned that:
“…litigants should not be encouraged to repudiate agreements for tactical reasons.
Whatever may have been the attitude to litigation in former times, it is not in keeping
with modern ideas to view it as a game. The object should be just adjudication,
achieved as efficiently and inexpensively as reasonably possible. Private funds and
stretched judicial resources should only be expended on genuine issues.”17
17 Op cit at para 67
43
[134] Judge Rogers’ caution manifests itself in this matter. The Defendant gave the
Plaintiff due notice of its intention to repudiate one of the conclusions reached
by the Grimsehl-Kuhn minute. A seven-day trial ensued. The Defendant’s
about turn on day eight, in its written and oral submissions, that the Plaintiff’s
principal entitlement to a myoelectric prosthesis and that the award of such
prosthesis, the value of which was capitalised in the agreed minute of the
actuaries and the schedules recording the capitalised valuations, should merely
be subject to a contingency deduction, is the very antithesis of effective and
inexpensive adjudication.
[135] Seven days of court time was expended canvassing an issue that the
Defendant conceded on day eight. The Plaintiff, unemployed since the accident
in 2010, due to his injury, was subjected to seven days of legal costs
unnecessarily.
[136] I agree with the Plaintiff’s submission that once the Defendant had conceded
the merits it should have made a reasonable offer. Instead, the Defendant
resisted the claim for 10 years, before conceding it on the eighth and last day
of the trial. This is a cynical approach to litigation, aimed to exhaust the
opposing litigant and, in this instance, a person with far lesser means.
[137] The Defendant’s written and oral arguments call on this Court to make adverse
inferences against the Plaintiff and his witnesses. The Defendant’s legal
representative did not, in cross-examining the Plaintiff or his witnesses, confront
these witnesses with the proposition on which the adverse inference is based.
These witnesses were not given an opportunity to respond. This is the very
44
essence of testing the veracity of a witness’s evidence in cross-examination.18
I have recorded a number of examples.
[138] The Defendant, in its written submission, refers to a decision of Dubazana Vusi
v SARCC and Metro Rail, an unreported decision where Hussain J had
criticised Mr Grimsehl (the Plaintiff’s expert) on the frequency of the
replacement of prostheses, to dispute the necessity of a five-year prosthesis
replacement. Mr Grimsehl was not confronted with this criticism in cross-
examination. Mr Grimsehl was not afforded the opportunity to respond.
[139] The Defendant argues that the Grimsehl-Kuhn minute is a mere iteration of a
prior minute of 30 November 2016, four years before the Plaintiff first attempted
to use the myoelectric prosthesis. The Defendant argued that that was
indicative that the opinion was not an analysis of the facts or consequences.
The inference the Defendant sought to be drawn was never put to Mr Grimsehl
in cross-examination. Mr Grimsehl was not given the opportunity to respond.
The Defendant raised this repudiation of the entire substratum of the Grimsehl-
Kuhn minute (not merely one paragraph) in argument. It is contrary to the notice
requirement articulated by the Supreme Court of Appeal in Bee v RAF.
[140] The Defendant argues that the impartiality of Mr Grimsehl as an expert is
questionable as he was the treating prosthetist. This proposition was not put
18 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1
(CC), at paras 61 to 64
45
to Mr Grimsehl in cross-examination. Mr Grimsehl was never given the
opportunity to respond to this.
[141] The Defendant asks the Court to draw an inference that the Plaintiff did not use
or practice with the prosthesis, or follow the instructions of his treating team.
These propositions were not put to Mr Ucuto in cross-examination for him to
respond to.
[142] The Plaintiff was never given an opportunity to counter the conclusion the
Defendant makes, that he has failed to care for the prosthesis and had
damaged it.
[143] The methodology the Defendant adopted in cross-examination of the Plaintiff
and his witnesses by reading large swaths of Ms Swart’s report and asking the
witness to comment on it, has limited value. The witnesses were not directed
to any particular aspect. The witnesses were not asked a specific question. The
expert opinion of Ms Swart, remained that. Reading the opinion to the Plaintiff,
Mr Grimsehl and Ms Motake did not change that. Ms Swart’s evidence-in-chief
was lead in a similar vein, with Ms Swart reading her report into the record. The
reading into evidence of the expert report does not elevate its status. Nothing
changes when that report is read into the record multiple times. Such
methodology of leading evidence only extends the duration of the hearing.
[144] This is a trial. The leading of viva voce evidence is critical. The matter cannot
be decided on the opinion of the Defendant’s expert summaries filed of record,
46
as the Defendant appears to postulate in both its written heads and in oral
submissions.
[145] The Defendant was represented by senior attorney, senior counsel and senior
junior counsel all with extensive experience in personal injury litigation. This is
telling. The manner the litigation unfolded was deliberate and calculated.
[146] The awarding of costs lies within the discretion of the Court. Given the manner
in which the Defendant conducted itself in this litigation, I am of the view that
an adverse costs order is merited.
[147] The Plaintiff seeks the costs of the following experts:19
Mr Heinrich Grimsehl (Orthotist); Ms Catherine Motake (Occupational
Therapist); Mr James Brümmer (Architect); Dr Amanda Peta (Psychologist);
Dr L L Mashayamombe (Specialist Psychiatrist); Rita Henna & Partners Inc.
(Rehabilitation Occupational Therapist); Ms Jessica Morris (physiotherapist);
Hlabaki HLD (Pty) Ltd (Industrial Psychologist); Ms Khanyisile Twala (Social
Worker); Mr G J Wentzel (Physiotherapist); Dr Geoffrey Read (Orthopaedic
Surgeon); Neville Cohen (Mobility Consulting Expert); Dr M Malaka (Industrial
Psychologist); Dr Morris Shapiro (Diagnostic Radiologist); Gerhard Jacobson
Consulting (Actuary); and G W Jacobson Consulting (Actuary).
[148] The Defendant accepted its liability for the Plaintiff’s general damages, past and
future loss of earnings when these were settled in 2015. It follows therefore
19 Rule 70(3) of the Uniform Rules of Court
47
that the Defendant is liable for the costs including the qualifying costs of the
experts, in relation to these damages. This includes the costs and qualifying
fees of the industrial psychologist, the physiotherapist and social worker
namely, Hlabaki HLD (Pty) Ltd, Dr Malaka, Mr Wentzel, Dr Twala.
[149] As a result of the agreement between the orthopaedic surgeons and the
actuaries recorded in their joint minutes, these experts were not called to testify,
the parties agreed that I take into evidence both the reports of and the
agreement reached between these experts. It follows therefore that the Plaintiff
is entitled to recover the costs including the qualifying costs of orthopaedic
surgeon Dr Reid and the consulting actuaries Gerhard Jacobson Consulting
(Actuary); and G W Jacobson Consulting (Actuary), including the costs related
to the updated actuarial report filed of record. There was no dispute between
the parties on the report of the diagnostic Radiologist. The costs including the
qualifying fees of Dr Shapiro are allowed.
[150] In the course of the trial the parties reached agreement on Mr Ucuto’s need for
and the costs related to psychiatric treatment, psychotherapy and occupational
therapy. Consequently, I am of the view that the Plaintiff is entitled to recover
the costs including the qualifying fees of these experts, Dr Mashayamombe and
Dr Peta. The parties agreed on the opinions in the report of the occupational
therapist, Ms Morris of Rita Henna and Partners. It follows that the Plaintiff is
entitled to recover her qualifying costs.
[151] The Plaintiff called Mr Grimsehl, Ms Motake, Mr Brummer and Ms Rich to testify
to address the issues in dispute at the commencement of the trial, namely what
48
type of prosthesis should be awarded to the Plaintiff and the extent of the
quantum of future medical and associated costs. I find that all these experts,
save for Ms Rich, were necessary witnesses. The Defendant is liable to pay the
qualifying fees and any fees relating to their attendance at Court.
[152] Both parties were represented by a senior and junior counsel. Given the
number of issues in dispute at the commencement of the trial, the employment
of two counsel is reasonable.
[153] In the result I make the following order:
1. The Defendant is ordered to pay the Defendant the sum of
R5,127,593.23
2. The Defendant is to pay the Plaintiff’s costs on an attorney, client basis
including the costs of:
2.1 The costs including the qualifying fees of the following experts:
Dr Amanda Peta (Psychologist);
Dr L L Mashayamombe (Specialist Psychiatrist);
Rita Henna & Partners Inc. (Rehabilitation Occupational
Therapist);
Ms Jessica Morris (physiotherapist);
Hlabaki HLD (Pty) Ltd (Industrial Psychologist);
Dr Khanyisile Twala (Social Worker);
49
Mr G J Wentzel (Physiotherapist);
Dr Geoffrey Read (Orthopaedic Surgeon);
Neville Cohen (Mobility Consulting Expert);
Dr M Malaka (Industrial Psychologist);
Dr Morris Shapiro (Diagnostic Radiologist);
Gerhard Jacobson Consulting (Actuary); and
G W Jacobson Consulting (Actuary).
2.2 The qualifying fees and the fees for the court attendance of the following
experts:
Mr Heinrich Grimsehl (Orthotist);
Ms Catherine Motake (Occupational Therapist);
Mr James Brümmer (Architect);
2.3 two counsel in Scale C.
___________________________
DREYER JA
JUDGE OF THE HIGH COURT
JOHANNESBURG
50
For the Plaintiff: Adv Gift Shaokane SC
Assisted by Ms Ngomane
Instructed by: Denga Inc Attorneys
For the Defendant: Adv J Wessels SC
Assisted by Ms Vallaro
Instructed by: Norton Rose Attorneys
Date of hearing: 23 to 25 July 2025, 31 July 2025, 1 August 2025, 8, 9
and 10 December 2025
Date of judgment: 1 September 2026