G M C v Road Accident Fund (85818/2016) [2024] ZAGPPHC 1175 (2 December 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case number: 85818/2016

DELETE WHICHEVER IS NOT APPLICABLE

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHERS JUDGES: NO

(3) REVISED

 

............................. ..............................................

 

 

DATE SIGNATURE

 

 

In the matter between:

 

G[…] M[…] C[...] PLAINTIFF

 

and

 

ROAD ACCIDENT FUND DEFENDANT

 

JUDGMENT

 

Motha J

 

Introduction

[1] Since the perestroika at the Road Accident Fund (RAF), those who are deft at quantifying RAF claims have experienced a windfall. The failure of the RAF to defend matters has resulted in courts- unlike the lady justice with her sword- administering justice with their hands tied behind their backs by the use and abuse of Rule 38(2)¹, in RAF matters. In casu, the contingencies applied by this court are called into question.

 

[2] In support of the application for default judgment, the plaintiff filed an affidavit that reads: “Since the Defendant’s defence has been struck and since Defendant remains disinterested in settling the matter, Plaintiff requests judgment be granted as prayed for in terms of the Application for default Judgment to which this affidavit is attached.”

 

[3] From reading this affidavit, it immediately becomes apparent that the implicit submission is that if the RAF does not bother to come to court to contest the postulated amount of damages, the court, too, should not interfere with the contingency allowance suggested and, by extension, the sum of money claimed.

 

[4] This premise dressed as an objection to the contingencies applied by the court loses sight of the fact that the application of contingencies is pre-eminently and primarily a prerogative of the court and is by its very nature arbitrary, depending on the court’s view of imponderables in the matter. This much is enunciated in a plethora of cases. For example, in the matter of Goodall v President insurance Co.² the court said:

 

“In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art of a science of foretelling the future, so confidently practiced by the ancient prophets and soothsayers...is not numbered among the qualifications for judicial office.”³

 

[5] On the same subject, the court in Southern Insurance Association v Bailey NO⁴ held:

 

"Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers… All that the court can do is to make an estimate, which is often a very rough estimate of the present value of the loss. It has open to it two possible approaches.

 

One is for the judge to make a round estimate of an amount that seems to him to be fair and reasonable. This is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make on assessment by way of mathematical calculations on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative…One of the elements in exercising that discretion is the making of a discount for "contingencies" or the "vicissitudes of life". These include such matters as the possibility that the plaintiff may in the result have less than a "normal" expectation of life; and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case.'⁵

 

[6] Having been confronted with, and considered, a wide range of equally plausible options of contingency allowances, this court exercised its discretion in the true sense (as opposed to the discretion in the wide sense), when it decided to award the plaintiff the sum of R1 280 843.52 for the past and future loss of income, with the General Damages of R800 000.00 having been agreed to by the parties. It is trite that the court must exercise its discretion judiciously.

 

 

The facts in brief

[7] The plaintiff related that, on 19 October 2013, “he was a driver of a vehicle when another vehicle approached from the front in the wrong lane. He reported that he swerved to avoid a collision, and subsequently lost control of the vehicle which crashed into the steel barriers. He reported that the other vehicle just drove off. He denied loss of consciousness and remembered all the details of the accident, and he reported that he remembers everything until the paramedics arrived and inserted an intra-venous line.”⁶

 

[8] According to the admission diagnosis, he sustained fractures of the tibia and fibula, knee and femur. The Orthopedic Surgeon confirmed that he suffered the following injuries:

 Left clavicle fracture,

 Chest injury with rib fracture on the left,

 Left femur fracture,

 Left tibia and fibula fracture.

 

 

Employment history

[9] At the time of the accident, he was completing his Honours degree, having completed his BCom Accounting degree. The final examination was in November 2013, however, due to the accident he wrote his final examination in January 2014 and passed.

 

[10] Pre-accident, he had already secured employment at Botha Rekenmeesters, located in Centurion, in January 2014, at the salary of R8000.00 per month, but forfeited the opportunity due to the accident. He told the Occupational Therapist (O.T.) that he went to work for one (1) day and fell. He then moved back to his hometown to live with his parents.

 

[11] The Industrial Psychologist (I.P.) contacted Mrs. Celeste Barnard, a Director at Botha Rekenmeesters. She confirmed the employment offer and stated that the plaintiff would most probably not have been appointed as an accountant to the company after the learnership. She said that the company never appointed clerks after their learnership, since no capacities and vacancies existed. Furthermore, she stated that they did not assist clerks or interns in terms of recruitment or placement at accountancy firms.

 

[12] In February 2014, the plaintiff found employment at AudePrac at a salary of R3000.00. After two weeks, he left that employment because the work required prolonged driving, which he could not do due to his injuries.

 

[13] In March 2014, the plaintiff secured another employment at Cronje and Cronje Auditors, for a period of three years. The starting salary was R4800.00, which increased to:

 

R5280.00 in March 2015;

R5808.00 in September 2015;

R6090.00 in March 2016;

R8000.00 in January 2017.

 

[14] In a conversation with the Industrial Psychologist, the Director at the firm, Belinda Minnaar, indicated that the plaintiff “performed very well and satisfied all the requirements of his clerkship, and to this end, he was offered a permanent position after his internship, however, he declined the offer.”⁷Accordingly, upon the completion of his clerkship, the plaintiff’s employment ended, on 28 February 2017.

 

[15] In March 2017, the plaintiff secured permanent employment at TSC Financial Management Services (TSC). His starting salary was R10,000.00 per month, which continually increased to R12,840.00 in February 2018; and when the partnership was dissolved in April 2021, he was earning R21,371,23 per month. Talking to the Industrial Psychologist, the partners at TSC, Mr. Stefan Coetzee and Thys Coetzee, stated that the plaintiff “was a proficient Accountant, and that he possessed all the necessary skills and qualifications to work as an Accountant.”⁸

 

[16] By 2019, the partners “individually indicated that the claimant was responsible for managing a team of employees of about 5 individuals… Both partners indicated that they were never aware of any physical impediments or ailments hampering the claimant in performing his work tasks.”⁹

 

[17] Moreover, the partners indicated that the claimant was not expected to drive often or far and driving or travelling to clients was not one of his core duties. The plaintiff’s responsibilities involved drawing up financial statements, keeping ledgers and inventories, submitting tax documents and other general accounting duties. Due to internal problems, the partnership dissolved, and the plaintiff’s employment ended. Both partners were aware that the plaintiff started working in private practice upon the dissolution of the company.

 

[18] When conversing with the Industrial Psychologist, the partners stated, separately, that an accountant in private practice would be expected to generate an income in excess of R500,000 per year. Mr. SJ Coetzee said that a new accountant would earn probably between R20,000.00 to R25,000.00 per month. Mr. TS Coetzee indicated that an established accountant with work on retainer would earn around R60,000 per month considering that they were in the Vaal Triangle.

 

[19] Following the closure of the firm, the plaintiff became self-employed at HC Accounting Services. The company was registered under his mother’s name, and “upon probing, he indicated that he is currently the sole employee, an accountant at the company, and his mother is not qualified to render any accounting services. He reported that his mother is in charge of the marketing and administration, but the company's sole income source is from fees earned from professional accounting services rendered.”¹⁰

 

[20] He reported that the company was registered on 31 March 2021, and initially operated from offices in Vanderbijlpark until October 2021 when it moved to his mother's house. He said that his salary was R18,000.00 per month, however, he conceded to the Industrial Psychologist that he benefited from the deductions for the premises, utility bills, fuel and vehicles as well as other expenses listed as medical and legal fees.

 

The First pre-morbid and post-morbid postulations

 

[21] The Industrial Psychologist opined that:

 

“Overall, the claimant’s post-accident career and earnings progression is a fair representation of his uninjured potential, since he completed his honours degree, completed his accounting internship in the requisite three-year, qualified and registered with SAIPA as a Professional Accountant, and worked as a Junior Accountant, progressing to an experienced professional accountant and eventually a self-employed professional in private practice as is currently the case.

 

The above trajectory represents a fair illustration of the career and earnings development of a Professional Financial Accountant, and it is highlighted that both the claimant’s qualification and his pre-accident arranged internship was geared towards a career in financial accounting (as opposed to other areas of specialization such as auditing, forensic accounting, and management accounting).”¹¹

 

The issue of sympathetic employment

 

[22] At this stage, it was clear that the plaintiff's loss was confined to a low figure relating to a salary lag that /resulted from his loss of the opportunity at Botha Rekenmeesters. Nothing beats the collateral information that comes from one’s fellow employees or employers and what they say about one, the University of Life. By the time the plaintiff worked for TSC Financial Management Services, more than three years and five months had passed since the occurrence of the accident. The plaintiff worked at TSC for Stefan and Thys Coetzee from March 2017 to April 2021, a solid period of four years. When the firm was dissolved, he had seven years and six months post-accident. At the firm, he was entrusted with the responsibility of managing a team of five (5) employees. It is strange in the extreme that both Stefan and Thys, who have no reason to lie, stated that the plaintiff was a proficient accountant possessing all the necessary skills, and, having worked with him for this long, were never aware of any physical impediments or ailments hampering his work performance, not even once.

 

[23] Seeing that the plaintiff was reporting to Stephan Coetzee and upon conducting the interview on 24 October 2018, I found it bizarre that the Occupational Therapist (O.T.) never called Stephan Coetzee, despite being in possession of his telephone numbers, to confirm the information he received from the plaintiff, especially about difficulties at work and being sympathetically employed. It is noteworthy that the plaintiff told the O.T. that he was overseeing three (3) junior accountants.

 

 

Aspirations and neurocognitive challenges

 

[24] As this becomes topical later, it bears mentioning that during the plaintiff’s consultation with the O.T. under the heading Cognitive, the following was written:

 

“Upon direct questioning, he denied experiencing any cognitive difficulties as a result of the accident.”¹²

 

[25] He informed the O.T. that before the accident he played rugby, enjoyed quadbike riding, river rafting and participated in other physical activities. In keeping with the orthopedic injuries he sustained, he mentioned several challenges, such as pains in his lower limbs when walking or being involved in prolonged driving, hence, he owned an automatic motor vehicle. He also mentioned that he had to stand and stretch while sitting at work, due to hip and lower back pains.

 

[26] Following the engagement with the plaintiff on his aspirations for the future, the O.T. wrote:

 

“Aspirations the time of the accident:

 

He reported that he aspired to complete his examinations and to start working in December 2013.

 

Current aspirations/options/retirement/resignation:

 

He reported that he would like to continue working within his current job. He reported that he would like to be promoted.”¹³

 

[27] Indeed, this was in keeping with what he had related to the I.P. Hence, the I.P. saw it necessary to mention the following:

 

“…it is highlighted that both the claimant’s qualification and his pre-accident arranged internship was geared towards a career in financial accounting (as opposed to other areas of specialization such as auditing, forensic accounting, and management accounting)”

 

[28] At this juncture, it is apt to pause and recapitulate the following: from the accident, the plaintiff sustained orthopedic injuries and both pre-morbid and post-morbid he sought a career as an accountant in financial accounting.

 

 

The Second pre-morbid and post-morbid postulation

 

[29] On 4 March 2021, almost eight (8) years after the accident, the Occupational Therapist re-examined the plaintiff. Under the rubric Injuries sustained, the O.T. wrote:

 

“Head injury;¹⁴

 

Bleeding and collapsed left lung;

 

Fracture left shoulder;

 

Fracture left lower limb- multiple fractures along the length of the leg."

 

[30] For the first time, it was recorded that he sustained a head injury and was suffering from approximately two migraines per month affecting his vision. He also reported an average pain level of 8/10. When suffering from headaches, the O.T. wrote that he has difficulty focusing on a task at hand.¹⁵ The plaintiff reported to the O.T. that he cannot remember events from his childhood and cannot recall things that occurred one week prior.

 

[31] Amongst a plethora of complaints, he also mentioned the following:

 

 He has short-term memory difficulties;

 

 He cannot recall the names of people;

 

 He forgets his to-do list and is dependent on reminders and note-taking;

 

 He needs a shopping list when going to the shops;

 

 He misplaces his belongings;¹⁶

 

 He reported that he is easily distracted and struggles to focus on the task at hand once distracted he struggles to return to the task.

 

 Reported that his productivity is reduced by memory and concentration difficulties.¹⁷

 

[32] The O.T. suggested that deference be given to a Neurosurgeon to assess and comment on headaches.¹⁸

 

[33] Under the rubric Psychosocial, he told the O.T. that he was experiencing symptoms of depression, including loss of enjoyment and low mood. Further, he was experiencing symptoms of anxiety, panic, restlessness, stress/tense and inability to relax. He was irritable and easily lost his temper which led to conflict.¹⁹

 

[34] To the O.T., he also stated that he was suffering from serious psychological distress in the form of symptoms of Depression Anxiety and Posttraumatic Stress Disorder (PTSD). Having recorded that the plaintiff sustained a head injury, the O.T, perplexingly, to put it mildly, recorded the following:

 

“On screening, however, he presented with moderate to severe difficulties across all cognitive tests, including memory, attention, language and visuospatial skills. In the absence of a head injury this could relate to his psychological functioning and has to be evaluated further by the Clinical Psychologist.”²⁰

 

Discussion

 

[35] First, I find it curious that a person whose employers never saw any challenges with his work suffered from all these difficulties. And it is the self-same O.T. to whom he said that he had no cognitive difficulties following the accident. As a matter of fact, at Cronje and Cronje he performed so well that at the end of his internship, he was offered a permanent job, which he declined for a better offer at TSC.

 

[36] Regarding his future aspirations, the O.T., when compiling the addendum report, noted:

 

Future aspirations:

 

“-- he aspired to complete his studies and obtain employment as a trainee accountant then later as a senior accountant.

 

-- Such work is classified as skilled (professional) employment and falls in the sedentary to light demand of physical work.”²¹

 

[37] It bears repeating that this was the third time the plaintiff was asked about his career aspirations pre-morbid and post-morbid, and, over the years, gave the same answer to the I. P. and O.T. during the first interview.

 

[38] As a result of cognitive difficulties, the O.T. opined that his ability to learn and further his studies will be compromised and his opportunity for career progression may be curtailed by the sequelae and present cognitive impairment resulting from the accident. Suddenly, and ten years after the accident, there was a change in his career aspirations. Later in this judgment, this point is revisited.

 

[39] As per the O.T.’s instructions, the Clinical Psychologist (C.P.) was eventually sourced, in May 2024, ten (10) years after the accident. For the first time, the plaintiff related that when he was supposed to start on a Monday at Botha Accountants in Centurion, he experienced a panic attack and was again hospitalized for two weeks due to a running stomach caused by anxiety. As a result, he missed the opportunity to work at Botha Accountants. Strange, indeed, since he had told the O.T. that he had fallen and had to go back to his hometown. None of the experts were told about the anxiety attack, nor the hospitalization for two weeks.

 

[40] He informed the C.P. that his marks dropped from the 80s or 70s to the 50s because he struggled with concentration and forgetfulness due to pain. This is another strange narration because if one looks at the marks of the plaintiff pre-accident, the bulk of his subjects were passed with the 60s. Moreover, he was able to complete his internship in record time, without problems.

 

[41] Additionally, the C.P. was informed that his mother, Ms H[…] C[...] (50) was employed as an Aupair and part-time Accountant at a glass shop. He reported to the C.P. that he married his high school girlfriend in 2014. Sadly, they separated in 2020 and divorced in 2023. He attributed the failure of his marriage to the accident because it affected his ability to produce enough testosterone and thereby negatively impacted intimacy in his relationship. He indicated that he lost interest in romantic relationships.

 

[42] Contrary to what he related to the O.T. that he only drove short distances at TSC, and what the partners of TSC Financial Management Services told the I.P. that the plaintiff “was not expected to drive often or far or travelling to clients was not one of his core duties”, the plaintiff informed the C.P. that he left his work at TSC when his travelling responsibilities increased. This is simply incorrect. On 3 November 2022, the I.P. contacted him telephonically to participate in a follow-up interview. He reported the following:

 

“the claimant reported that since his interview on 4 February 2021, he has left TSC accounting service, due to a dispute between the partners and the subsequent dissolution of the company.²²”

 

[43] In direct contrast to the addendum compiled by the O.T., which states that there was a head injury, the C.P. made it a point to note that there was No Head injury. When setting out the injuries sustained by the plaintiff, the C.P. mentioned the following:

 

“6 .2.1.1. An injury to his left ribs and lung.

 

6.2.1.2. A fractured left clavicle.

 

6.2.1.3. A fractured left femur.

 

6.2.1.4. Fractured left tibia.

 

6.2.1.5 No head injury.”²³

 

[44] At the time of the evaluation, the C.P. noted that he presented with Major Depressive Disorder and Posttraumatic Stress Disorder. He, furthermore, observed that the plaintiff presented with some psychomotor retardation along with slum posture and downcast gaze. He also said that he was emotionally labile and frequently tearful throughout the assessment. He stated that he was more forgetful, unable to concentrate like before, more irritable and prone to swearing and shouting than before.

 

[45] Back to the issue of career aspirations. For the first time ten years after the accident, the plaintiff told the C.P. that he had planned a career in auditing and intended to pursue corporate employment. The Industrial Psychologist’s remarks on this aspect are quite telling. He wrote: “The claimant’s said intent was to pursue corporate employment, not self-employment as initially suggested. He also displayed a desire to become an auditor, specifically (my emphasis).”

 

[46] This was in direct conflict with what he had told the Occupational Therapist, as recorded in the report and addendum. When requested to provide a second addendum, the O.T. insisted that the opinion in the first addendum remained valid. It is noteworthy that following the interview on 21 August 2024, 10 years and 10 months after the accident, only then did the I.P. learn that the plaintiff intended to pursue further tertiary studies to qualify as an auditor, which he said would take two years to complete while working. The I.P. wrote that his ultimate aim was to become an Auditor. In the absence of the accident, he would not have entered into private practice as this was not his intent for career.”

 

[47] All these contradictions are not without consequences. A picture is painted of a case that is being constructed and reconstructed as the years roll on. The fact that experts seem to play along is most worrying. What is one to make of the O.T. who recorded no neurological challenges in his first report, and yet recorded a head injury in the addendum. Little wonder the courts have said: “The fact that there was no evidence to contradict the evidence given by the defendant does not mean that the court is bound to accept the defendant’s evidence…”²⁴ It is against this backdrop that I dealt with the Industrial Psychologist’s postulations and eventually the contingencies.

 

[48] Following the consultation with the Clinical Psychologist, this matter was turned on its head. First, the plaintiff was suffering from debilitating PTSD, which grossly affected his work. However, the objective evidence did not bear this out, if regard is had to what the plaintiff’s former employers told the I.P., both accounting firms of Cronje and Cronje Auditors and TSC Financial Management Services. When the issue of PTSD first arose, the plaintiff was still employed at TSC Accounting. At the risk of repeating myself, the partners commented that the plaintiff was a proficient and efficient employee who did not exhibit any challenges. He was given the huge responsibility of managing junior accountants. It is a fact that after the accident he progressed in his career and became an accountant in record time.

 

[49] Second, it is incorrect for the C.P. to create the impression that the plaintiff was married before the accident and intended to be an auditor when he recorded that:

 

“The claimant reportedly lived an active lifestyle prior to the accident and had been on a trajectory to realise his goal of becoming an auditor. He was married and enjoyed social interaction and seemed to enjoy a variety of leisure activities. These aspects had likely been highly valued by the claimant and formed the basis for his identity and self-concept. Due to injuries suffered in the accident and the resulting physical and emotional consequences, he had been unable to pursue previously available career opportunities, which resulted in a disruption of his career trajectory. He was unable to resume engagement in previously enjoyed recreational activities, he became socially withdrawn and his marriage ended in divorce.”

 

[50] I accept the findings of the Clinical Psychologist, as I must, but reject his opinion that there is a direct link between the development of the psychological difficulties he identified and the claimant’s involvement in the accident. It is not open to the Clinical Psychologist, or to any expert, for that matter, to decide on the causal nexus. In the same way, it is the court’s decision alone on contingencies, a decision on causation lies firmly within the province of the court. In the matter of Road Accident Appeal Tribunal and Others v Gouws and Another²⁵ that much was elucidated. In deciding on causation, courts do not only look at factual causation but also at legal causation. Seeing that contingency deductions are the only issues in question, I will park the whole question of causation for another day. Suffice it to say that the causal nexus between the PTSD, as diagnosed by the Clinical Psychologist, and the accident is dubious, in light of the breakdown of his marriage in 2020 ending in divorce in 2023.

 

 

Conclusion

 

[51] To this day the Occupational Therapist’s addendum records that he wanted to be an accountant. For all intents and purposes, the plaintiff achieved his aspirations as set out in the O.T. and I.P. reports. The plaintiff has been working as an accountant since 2021 when he left TSC. The basis for higher-than-normal contingency deductions is that the psychological deficits are likely to negatively impact his production, concentration and drive. Having already addressed these issues, I do not agree with the higher than so-called normal contingency deduction in post-morbid future income. Moreover, it would be a travesty of justice to apply the suggested contingency deductions on figures that assume auditing as a career path. The assumptions given to the actuary for calculation are not sound and are very speculative. Be that as it may, the fact remains that he did not start at Botha Accountants and his salary was below the promised R8000.00. Accordingly, I have accepted the past loss of income of R 296 556.00, factoring in a 5% contingency deduction.

 

[52] However, the post-morbid future scenario is unreliable as it is calculated, manipulated, or as stated by the Actuary, “…appears to simply be an attempt to favourably ‘structure’ his tax obligation.” The Actuary’s throwaway remark to the effect that “Whether all of such deductions would be acceptable to SARS is not clear to me” is most concerning.

 

[53] To put everything into perspective, it must be mentioned that the I.P. was provided with the financial statements for the years 2022, 2023 and 2024. As already mentioned supra, the plaintiff reported that his salary was R18000.00 per month. This did not reflect the benefits from deductions for premises, utility bills, fuel and vehicles as well as other expenses listed as medical and legal fees. Crucially, in the Annual Financial Statement for the year ended 28 February 2022, the company’s revenue was recorded as R681 736.00. Commenting on this, the Actuary stated that it is not clear how the 2022 pay slip relates to the revenue reflected in the financial statement. If revenue includes the payments from his mother's company one would have expected to see at least R216 000.00 (R18,000.00x12) for the 2023 financial year, he narrated. (Noting that his pay slip of R18,000.00 in October 2022 and his statement that his monthly income has remained level). It would appear that Mr C[...] has effectively reduced his taxable income of at least R216 000.00 per year to near zero by means of deductions, adumbrated the Actuary.

 

[54] Rather interestingly and instead of engaging with the I.P. and plaintiff on these issues, the actuary decided, in the light of the above uncertainties, to disregard the financial statements (which appear to simply be an attempt to favorably structure his tax obligation) and proceeded to base his calculations on the pay slips provided, which indicated that he earns R18000.00 per month. Hence, I question the assumptions relied upon in the post-morbid figure. Nevertheless, the court cannot adopt a non-possumus attitude and make no award, especially since the RAF has not bothered to defend. On a preponderance of probabilities, I am persuaded that the probable postulations for pre and post-morbid are:

 

[55] The Industrial Psychologist’s first pre-morbid scenario (Had the accident not occurred), viz:

 

“As such the writer notes that the claimant actual post-accident career and professional development as well as his earnings progression is a fair reflection of his uninjured capacity. Having said that, it is highlighted that the claimant would have entered into an internship with a higher salary than evidence post accident, and it is possible that he would have registered as a professional Accountant slightly earlier than what occurred after the accident, however, this cannot be reliably predicted. As such, the writer notes that it would not be prudent to assume that the claimant's career trajectory had been perpetually delayed as a result of the accident, and it is suggested that his past losses be calculated based on the likely pre-accident income levels versus the actual post-accident earnings. In this instance, it is important to note that once the claimant started working as a junior accountant in March 2017 and a Professional Accountant shortly thereafter, his career and earning potential had even out.

 

As such, it is assumed that the claimant would have worked as an accountant for about three to four years, and it is fair to assume that he may have pursued private practice regardless of the accident…”²⁶

 

[56] The I.P.’s first post-morbid scenario (Having regard to the accident) viz:

 

“After the accident, the claimant was unable to write his final Honours exams, and had to write supplementary exams early in 2014 (which he passed), coupled with this, he was unable to engage employment within his intended capacity due to his inability to live independently at the time due to his injuries. This resulted in a financial setback and delay, as claimant entered into a learnership slightly later, and with lower remuneration. The claimant completed his learnership by February 2017, instead of January 2017, which would have been the case uninjured. The claimant entered employment as a junior accountant in March 2017, earning R10,000 per month (2017 terms), and his earnings progressed to approximately R21,000 per month ( 2021 terms) by the time he resigned in April 2021. The claimant is currently self-employed as a Professional Accountant, and though he reportedly earns a basic salary of R18,000 per month, it is noteworthy that he is the sole professional practitioner, and he derives financial benefits from the expenses paid by the company, expenses which cover the overheads. The claimant was 30 years old at the time of his assessment in February 2021, and was 32 years old at the of the follow-up assessment in November 2022” the writer is of the view that the claimant will probably remain in his current position, with earnings progression still likely to occur, as the business expands.”

 

[57] Utilizing the figures, which are not only speculative but also questionable, I accepted that the plaintiff was delayed by one month from finishing his learnership. Additionally, when utilizing these figures, I took into consideration that the Orthopedic surgeon postulated that he “has at least 50% probability of developing severe post-traumatic osteoarthritis of the knee joint with a lifelong risk of 50% or more of requiring a total knee replacement, which will subsequently lead to a 60% probability of needing a revision knee replacement in the next 20 years.” Considering that in three years his salary had probably evened out, as stated by the Industrial Psychologists, I am of the view that his post-morbid future income is grossly understated. In the first year of his self-employment, the company’s gross revenue was R681,736.00. This figure is in keeping with what Stephan and Thys Coetzee told the Industrial Psychologist that an accountant in private practice would be expected to generate an income in excess of R5 00,000.00 per year.

 

[58] Therefore, the plaintiff’s post-morbid future income is more probable than the pre-morbid future income, hence, I applied the contingency deduction of 1,5% being the three-year salary lag. Three things need to be said. First, in my estimate, the sum of R1 280 843.52 is just and equitable for the plaintiff’s past and future loss of income. Second, based on the information before the court, as stated supra, I formed the view that the plaintiff’s post-accident salary is far higher than R18000.00. Third, and more importantly, because of grossly understating his salary, be it for tax purposes or not, the plaintiff concealed that his post-morbid future income had evened out.

 

[59] Perhaps, it is worth repeating that a contingency allowance is a discount for the imponderable vagaries of life when calculating the just replenishment of the depleted patrimony of a plaintiff, consequent to a delict. Contingencies are not tools of self-enrichment. Lately, they have been used incorrectly as tools for adjusting and ameliorating any incorrect actuarial calculation. With the occurrence of one of the imponderables, namely Covid 19, the so-called normal contingencies of 5% and 15% were placed into question. Contingencies cannot be both arbitrary and normal. Arbitrariness and normality are like two bulls in one kraal. By its very nature arbitrariness denotes inconsistency and uncertainty, whereas normality denotes certainty and consistency. When COVID-19 visited our shores, it led to the closure of many companies and the resultant jobs blood bath. The 0.5% contingency allowance needs to be visited and revised to 1% or 1.5%. The truth is that converting what others call the vicissitudes of life into money is guesswork of the highest order.

 

 

[60] Overall, this underscores that what a court deems to be not only fair and reasonable but also just and equitable, given the evidence before it, should be more important than these figures. In the same vein, the court in Van der Plaats v South African Mutual Fire and General Insurance Co Ltd²⁷ held:

 

“The rate of discount cannot of course be assessed on any logical basis: the assessment must be largely arbitrary and must depend upon the trial Judge’s impression of the case.”²⁸

 

[61] Finally, in as much as the court is not slavishly tied to the actuarial calculations, the court is not bound by the so-called normal contingency allowance; especially if it results in pouring out the largess from the horn of plenty at the expense of the defendant²⁹. The court is, certainly, at large to doveryai, no proveryai (trust but verify), to use an old Russian proverb.

 

Costs

 

[62] It is trite that costs follow the result. I do not see any reason to depart from this well-trodden path.

 

Order

1. The Defendant pays to the Plaintiff the sum of R 800 000,00 (EIGHT HUNDRED THOUSAND RAND) in respect of general damages on or before 180 days (hundred and eighty days) from the date of Court order;

 

2. The Defendant pays to the Plaintiff the sum of R 1 280 843.52 (One million two hundred and eighty thousand, eight hundred forty-three and fifty-two cents.) in respect of loss of earnings on or before the 180 days (hundred and eighty days) from the date of Court order;

 

3. The Defendant pays to the Plaintiff the sum of R 412 755,89 (FOUR HUNDRED AND TWELVE THOUSAND AND SEVEN HUNDRED AND FIFTY-FIVE RAND AND EIGHTY-NINE CENTS) in respect of past medical – and hospital expenses on or before the 180 days (hundred and eighty days) from the date of Court order;

 

4. The Defendant shall furnish to the Plaintiff a Section 17(4)(a) undertaking of the Road Accident Fund Act 56 of 1996, in terms of which the Defendant undertakes to pay the costs of future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him/her, pursuant to injuries sustained by him/her in a motor vehicle collision which occurred on the 19th day of October 2013, after the costs have been incurred and on proof thereof. The said certificate is to be served on Plaintiff’s attorneys no later than 28 NOVEMBER 2024.

 

5. The Defendant will not be liable for interest on the capital amount should the same be paid before or on the expiry of the 180 days from date of judgment as per paragraph 1 supra, failing which the Defendant will be liable for interest calculated from 14 days from date of judgment.

 

6. The Defendant pays the Plaintiff’s taxed or agreed party and party costs on the High Court scale up to the date hereof, which costs will inter alia include:

 

6.1. the reasonable cost of the medico-legal reports, RAF 4 assessment reports and the reasonable preparation and reservation fees (if any), addendum reports and any joint reports of the following experts as well as actuarial calculations by;

6.1.1. Dr. Daneel Heyns, Orthopaedic surgeon

6.1.2. Dr. M M Malan, Orthopaedic surgeon

6.1.3. Anoett Rossouw (M Venter), Occupational Therapist

6.1.4. Dr. JJ Theron, Orthopaedic surgeon

6.1.5. Dr. J Breytenbach, Orthopaedic surgeon

6.1.6. Premier Consult, Industrial psychologist

6.1.7. S Swart, Clinical psychologist

6.1.8. GRS actuaries

 

6.2. The costs of senior junior counsel for the trial, which cost will include attendance of pre-trial conferences and drafting of minutes (other than that by the Plaintiff’s attorney, if any), costs of preparation and attendance at judicial meetings (if any), interlocutory court appearances and all steps in compliance with any current and applicable Court Practice Directives, inclusive of costs of drafting of Heads of argument (if applicable) and a settlement fee to hand up the draft order on the settlement roll. The cost for Counsel on 12 April 2024 will be taxed on scale A;

6.3. The reasonable travel expenses of the Plaintiff in accordance with the AA tariff for attendance and accommodation of the medico-legal examinations;

6.4. The reasonable costs of instructing attorney and correspondent attorney at the seat of Court;

6.5. The reasonable costs of a correspondent attorney at the seat of Court which will include travel costs, attendance at Court, costs for pretrial conferences and formulation of the pre-trial minutes, and costs of actual attendances to the pre-trial conferences, preparation for and attendance of judicial meetings and interlocutory applications, time spent formulating written settlement proposals (where applicable) and all other steps in compliance with any current and applicable Practice Directives, and all subsequent Court Directives issued by the Judge President and/or Deputy Judge President of the above Honourable Court;

6.6. The costs occasioned by the Plaintiff’s attorney’s preparation of trial bundles and time spent uploading these as well as all other relevant pleadings and/or notices on the Court’s digital case line system.

6.7. The reasonable costs incurred to obtaining payment of the capital as well as taxed costs and Section 17(4)(a) undertaking.

 

7. There is a contingency fee agreement concluded between the Plaintiff and his/her Attorney of record.

8. Taxation or settlement of bills of cost will additionally be subject to the following general conditions:

8.1.1. The Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on the Defendant’s attorneys of record; and

8.1.2. The Plaintiff shall allow the Defendant 14 (fourteen) court days to make payment of the taxed costs from the date of stamped allocator and/or settlement.

8.1.3. The Defendant will not be liable for interest on the party and party cost except if not paid on or before the said agreed date in which case the Defendant will be liable for interest calculated from the date of stamped allocator and/or settlement.

 

9. The Interest rate on the outstanding monies due to the Plaintiff will be calculated as prescribed in Section 1 of the Prescribed Rate of Interest Act, 1975, as amended by the Judicial Matters Amendment Act, No 24 of 2015, which act was promulgated on 15 December 2015.

 

10. Payment of the capital amount and taxed costs shall be made into the following bank account:

ACKERMAN SWART ATTORNEYS:

Standard bank – Carletonville

BRANCH CODE: 016141

TRUST ACC. NO..: 282 696 679

 

 

 

 

 

_______________________

M. P. MOTHA

JUDGE OF THE HIGH COURT, PRETORIA

 

Date of hearing: 10 September 2024

Date of judgment: 02 December 2024

 

APPEARANCES:

For the Plaintiff: Adv H Vermaak instructed by CJ Van Rensburg Attorneys