SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO:5376/2019 
(1)    REPORTABLE:  NO
(2)    OF INTEREST TO OTHER JUDGES:  NO 
(3)    REVISED
DATE: 27/03/2024 
SIGNATURE
In the matter between:
JUFTER SICELO MHLONGO		PLAINTIFF 

AND

ROAD ACCIDENT FUND		DEFENDANT
_______________________________________________________________________
JUDGMENT
______________________________________________________________________
LANGA J: 
Introduction and Background 
[1]	This is an action for damages arising out of a collision that occurred between the motor cycle driven by the Plaintiff, Jufter Sicelo Mhlongo, and a motor vehicle with registration number D[...] 7[...] M[...] driven by one Zacharia Thobela. The Defendant is the Road Accident Fund (‘the RAF’), a statutory body established in terms of the Road Accident Fund Act of 1996. At the time of the collision the RAF bore the risk for all claims resulting from injuries sustained in motor vehicle accidents in terms of Section 17 of the Road Accident Fund 56 of 1996 (“the Act”). 

[2]	It is common cause that the collision in this case occurred on 28 October 2018 near Tonga in Mpumalanga Province and the Plaintiff sustained serious injuries as a result of the accident. As a consequence, the Plaintiff is now claiming general damages in the amount of R1 900 000.00, past and future loss of earnings of R6 461 431.00 as well as an undertaking for future medical expenses.

[3]	Ms N Nefolovhodwe for the Defendant confirmed that the merits were conceded by the Defendant on an 80% /20% apportionment. The offer was accepted by the Plaintiff. The general damages were also settled by the parties. The only outstanding issue for determination is the quantum of the Plaintiff’s claim in respect of past and future loss of earnings. 

[4]	In support of the claim, the Plaintiff relied on the evidence of his expert witnesses, some of which was presented in the form of affidavits. However, some of the experts were called to testify namely, the Occupational Therapist Mr SM Baloyi, the Industrial Psychologist Mr William Kalanko and Mr Wim Loots, the actuary. Although the Defendant filed the appearance to defend and was also legally represented right through the trial, it however did not file on any reports and called no witnesses. Basically, the matter will therefore have to be determined on the basis of the evidence presented by the Plaintiff.  

Concise facts
[5]	The relevant facts in this matter, as gleaned from the evidence led during the trial, are as set out in the paragraphs which follow. The Plaintiff was injured in the said collision with a motor vehicle while he was riding a motor cycle. After the collision did not lose consciousness and was transported by EMS in an ambulance to Nelspruit Medi Clinic for treatment where he was admitted for 4-5 months. Based on the medical reports, the Plaintiff suffered poly trauma with the fractures of the left femur, right clavicle, rib, left ulnar, right distal radial. He also sustained right lung contusion, fracture-subluxation of right pinkie and right eye injury. He was admitted and operated for the injuries. He also had skin traction, Foley catheter and analgesics. He also underwent physiotherapy as a result of the injuries. 

[6]	It is common cause that prior to the accident the Plaintiff was involved in a motor vehicle accident in which he suffered head injuries from which he recovered. At the time of the current accident, he was healthy and employed as a safety manager at Amtec. Seven 7 months after the current accident he went back to work where he was given light work doing office work mostly on his laptop. He apparently could not cope with other duties though and was released from work in 2019 and is currently unemployed. He now has a horde of health complains. He complains that that he is unable to write with his right hand which has a poor grip, he cannot move the right wrist up or down or make a fist; he cannot walk long distances; he cannot stand on his left leg for long periods without pains; he is unable to carry heavy things because of pain and weakness of his wrist; he cannot drive a manual car without pains and cannot do his normal house hold chores as he used to. 

Evidence
[7]	The Occupational Therapist Mr SM Baloyi testified on the effects of the accident on the Plaintiff’s level of function, work capacity, independence in daily activities and the ability to participate in leisure activities. Mr Baloyi stated that the accident had moderate to severe effect on the Plaintiff’s quality of life. He stated further that the Plaintiff was no longer competitive for work involving lifting and carrying of medium to heavy items. He lives with chronic pain in the left leg and can no longer do work requiring the use of boots or standing or walking for long periods.  Mr Baloyi further testified that the Plaintiff’s work speed, productivity and endurance have deteriorated due to pain and accompanying limitations.  The Plaintiff is also reported to experience pains when performing basic tasks and chores.

[8]	The Industrial Psychologist Mr Kalanko testified on the employability of the Plaintiff, his career prospects and earning potential following the accident as well as the resultant injuries and sequelae thereof. The report took into account his socio-economic status, family and educational background, employment history, knowledge and skills amongst other things.  He based his report on inter alia the hospital records, RAF1 Forms, RAF4 Form, report by the Orthopaedic Surgeon, payslips and interviews. He confirmed that although the Plaintiff was employed before the accident and continued working after the accident, he however, eventually lost his job as he could no longer cope with the demands of work apparently because of the injuries sustained. 

[9]	Mr Kalanko stated further that the Plaintiff had not yet reached his plateau when the accident happened and further that his physical deficits will preclude him from performing demanding and strenuous work requiring physicality such as walking for prolonged distances underground as safety officer. In his opinion after the accident the Plaintiff could no longer perform his duties as before the accident as a safety officer and that he will struggle to get employed unless it was accommodative employment by a sympathetic employer. He further opined that the Plaintiff will not be able to compete with healthier and uninjured counterparts in the open labour market. 

[10]	The Plaintiff’s past and future loss of income has been actuarially calculated and the basis of such calculations, which are elaborated upon in the ensuing paragraphs, appear to me to be in generally in accord with the facts and the probabilities in this matter. The actuary Mr Wim Loots testified on the actuarial report which he has compiled which reflects the calculations. I now proceed to deal with the quantification of the Plaintiff’s claim under the different heads of damages. 

Future Hospital, Medical and Related Expenses 
[11]	 More than adequate evidence has been placed before court that, as a result of the poly trauma and the injuries sustained by the Plaintiff in the collision, he would require future hospital and medical treatment. The details and particulars of such hospitalization and treatment are contained in the uncontroverted medico-legal expert reports compiled by the Plaintiff’s expert witnesses. I am satisfied that this head of damages should be dealt with on the basis of a statutory undertaking to be provided by the Fund to the plaintiff in terms of section 17(4)(a) of the Road Accident Fund Act, Act 56 of 1996 (‘the Act’), and I therefore intend granting an order to that effect. 

Past and future Loss of Earnings / Loss of Income Earning Capacity
[12]	The relief sought in this respect is for the court to determine the Plaintiff’s future loss of earnings which may or may not materialise. It is trite that the mere fact of physical disability does not necessarily reduce the estate or patrimony of the injured person. See RAF v Kerridge [2019] 1 all SA 92 SCA AT para 25. The court has to determine the total monetary value of all that the Plaintiff would have been capable of bringing to his patrimony had he not been injured and the total monetary value of all that he would have been able to bring into his patrimony after suffering the injury.

[13]	I must pause to state that notwithstanding the fact that the Defendant did not lead any evidence, the court nevertheless ought to consider the facts and the evidence of the expert witnesses. In Radebe v The Road Accident Fund (2457/2017) 2020 ZAFSHC (unreported) at para 24-26 the court stated the following:

The common theme is that the courts must jealously protect their role and powers. Courts are the ultimate arbiters in any proceedings. The facts that caused the expert opinions in this case are vital. It was supplied by the plaintiff.

It is not for the opposing party to prove the true facts of the plaintiff’s case; it is the onus of the plaintiff.

Only if the expert’s opinion based on the correct facts is questioned could it be expected that a countering expert should be called. It is the expertise that will then be at issue and not the accuracy of the facts on which it is based. Counsel must identify and separate the two aspects. 

The argument of the actuary in this case that the failure to call an expert in the defendant’s case is tantamount to a default judgment is wrong. It is not the expert’s veracity that is in dispute; it is the facts on which he based his calculations. Experts must assist the court and not a party to a dispute”.

[14]	As stated above, the Plaintiff’s past and future loss of income has been actuarially calculated and the basis of such calculations appear to accord generally with the facts and the probabilities in the matter. In his actuarial report, the actuary Mr Wim Loots calculated the value of the potential loss of earnings suffered by the Plaintiff as a result of the accident. He used the Plaintiff’s payslips from Ritluka Resource (Pty) Ltd and applied Mineral Technologies (Pty) Ltd dated 31/03/2022 and 25/01/2019, respectively. He also relied on the opinions of the Industrial Psychologist Mr Kalanko to compile his report. He calculated the pre and post morbid past and future loss of earnings as follows:

Pre-morbid: Past earnings R1 674 444: Future earnings R12 440 520: Total=R14 114 694.

Post-morbid: Past earnings R1 155 619: Future earnings R6 497 914: Total=R6 461 431.  

[15]	Based on his calculations, the net past loss of earnings amounts to R518 825, being R1 674 444 (pre-morbid past earning) minus R1 155 619 (post-morbid past earnings). The net future loss of earnings on the other hand amounts to R5 942 606 made up of R12 440 520 (pre-morbid future earnings) minus R6 497 914 (post-morbid future earnings.  The total past and future loss of earnings is accordingly R6 461 431 made up of R518 825 + R5 942 606. The Actuary left the issue of the contingency to the discretion of the court. The amounts also do not factor in any apportionment. 

Discussion
[16]	It is trite that there are no hard and fast rules as regards the application of contingencies. Contingencies are the risks of life that normally happens to people in life and may include illnesses, inflation, accidents or even death. In assessing damages for loss of earning capacity a court will consider the factors which may operate to decrease or increase the predicted loss. These factors which are referred to as contingencies can be positive or negative. Contingencies almost always decreases an award for full compensation for the injured person.

[17]	As the assessment under contingencies of damages does not involve a calculation but a prediction of the future, it must be accepted that assumptions upon which awards are made may be wrong. In the Quantum Yearbook Robert Koch suggests a sliding scale % per year to retirement namely 25% in respect of a child, 20% in respect of a youth and 10% for an adult. The normal contingencies ordinarily accepted by the RAF is 5% for past loss and 15% for future loss of earnings.

[18]	The Plaintiff’s counsel proposed contingency deductions of 5% and 15% on the pre-morbid and 10% and 15% on post-morbid past and future loss of earnings which he submitted are reasonable considering that the Plaintiff is no longer suited for medium to heavy duty work and would be dependent on sympathetic employment. The Defendant’s counsel on the other hand argued that the amount claimed by the Plaintiff for past and future loss of earnings is unreasonable as the Actuary failed to consider that the Plaintiff was in competitive employment. Counsel for the Defendant, however, did not dispute that the Plaintiff was entitled to compensation but suggested a 45% contingency deduction without giving a full reasons therefore.   

[19] 	It is trite that it is ultimately the court’s imperative to make a determination on the amount to be awarded as well as the contingencies to be applied. Where future loss of earning capacity has been established as a reasonable probability, and not mere speculation, the loss of an opportunity to earn a certain level of income in the future may be taken into account in calculating the loss of future income, a loss which may otherwise be difficult or impossible to access.  

[20]	The contingency deductions of 45% as proposed by the Defendant’s counsel are in my view out of kilter with the circumstances of this matter. I have therefore decided to deal with the contingency deductions as follows. As regards the pre-morbid I am satisfied that a higher contingency of 10% and 20% in respect of the past and future loss respectively should be applied. Regarding post-morbid, I am of the view that the contingency deduction of 5% and 10% would be fair and reasonable.  The calculations would therefore be as follows:

	Pre-morbid Past earnings:		R1 674 444 minus R 167 444 (10%) = R1 507 000
	Pre-morbid future earnings:	R12 440 520 minus R2 488 104 (20%) = R9 952 416
							Total: R1 506 000 + R9 952 416 = R11 459 415
  
	Post-morbid Past Earnings:	R1 155 619 minus R57 780 (5%) =R1 097 839
	Post-morbid Future Earnings:  	R6 497 914 minus R649 791 (10%) = R5 848 123
							Total: R1 097 839 + R5 848 123 = R6 945 962

[21]	Consequently, with the application of the 10% and 20%, the pre-morbid past earnings would amount to R1 507 000 while the pre-morbid future loss would be R9 952 416.  Post morbid past and future earnings with the factoring in of the 5% and 20% contingency deductions would amount to R1 097 839 and R6 945 960 respectively. That means that the Plaintiff’s total loss of income (past and future) is R11 459 415 – R6 945 122 = R4 514 293. What remains to be factored in is the 20% apportionment on the total loss of earnings which can be computed as follows: 

Total loss of earnings: R4 514 293 minus R902 858 (20%) = R3 611 434. The total loss taking into account the apportioned amount would therefore be R3 611 434 and this is the amount in intend awarding as loss of earnings.  

Conclusion 
[22]	 The amounts to be awarded to the plaintiff as damages are therefore the following: R3 611 434 for her past and future loss of income. In respect of the future hospital, medical and related expenses, as already indicated, I intend directing the Fund to furnish the plaintiff with a statutory undertaking in respect of such costs. 

Costs 
[23]	 The general rule in matters of costs is that the successful party should be awarded costs, and this rule should not be departed from except where there are good grounds for doing so. See: Myers v Abramson 1951(3) SA 438 (C) at 455. In this matter there is in my view no reason why there should be deviation from this general rule. Accordingly, I intend awarding costs in favour of the Plaintiff. 

Order 
[24]	Accordingly, judgment is granted in favour of the Plaintiff against the Defendant as follows:  

1.  The Defendant shall pay to the Plaintiff the sum of R R3 611 434 (three million, six hundred and eleven thousand, four hundred and thirty-four rand) in respect of loss of earning capacity within 180 days of the judgment;

2. The defendant shall pay the aforesaid amount of R3 611 434 into the trust account of the plaintiff’s attorneys, the details whereof are as follows: 

Account holder: 	Nkgadima and Associates Attorneys Inc

      	Bank: 			First National Bank (FNB)

      	Account Number: 	6[...] 

      	Branch:         		2[...] (Middelburg)

3.The Defendant shall furnish the Plaintiff with a 100% undertaking in terms of section 17(4) (a) of the Road Accident Fund Act, Act 56 of 1996 (‘the Act’), 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, arising out of the injuries she sustained in the motor vehicle collision on the 5 September 2009, after such costs have been incurred and upon proof thereof. 

4. The Defendant shall pay the Plaintiff’s costs, including reasonable taxable full reservation and preparation fees (if any) of the following:

4.1.	Counsel/Attorney’s fee for preparation and appearance on 30th October 2023 and 01st November 2023;

4.2.	Mr SM Baloyi (Occupational therapist) court appearance on the 30th October 2023;

4.3.	Mr T Kalanko (Industrial psychologist) court appearance on the 30th October 2023;

4.4.	Mr Wim Loots (Actuaries) court appearance on the 30th October 2023;

4.5.	Experts’ costs for reports in respect of the following experts and affidavits;

4.6.	Dr Hadebe (Orthopaedic surgeon);

4.7.	Dr S Selahle (Plastic and Reconstructive Surgeon;

4.8.	Mr Baloyi (Occupational therapist);

4.9.	T Kalanko (Industrial psychologist) and 

4.10.	Wim loots Actuarial Consulting

5.	The costs in (4) above shall be paid into the Attorney’s trust Account in (2) above.

MBG LANGA
JUDGE OF THE HIGH COURT
MIDDELBURG LOCAL SEAT

Appearances
Counsel for the Plaintiff:						Advocate LMN Nkgadima
Counsel for the Defendant: 						Ms A Nefolovhodwe
Date of hearing:						9 November 2023
Date delivered:						27 March 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 27 March 2024 at 14h00.