---

Latest amended version: 6 March 2025

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

NORTH WEST DIVISION, MAHIKENG

 

CASE NUMBER: RAF16/2023

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates YES/NO

 

In the matter between:-

 

MASILELA SB	Plaintiff
and
ROAD ACCIDENT FUND	Defendant

This judgment is handed down electronically by circulation to the e-mail addresses of the legal representatives of the parties.  The date for the handing down of the judgment is deemed to be 5 MARCH 2025

JUDGMENT

FMM REID J

 

[1]          In terms of Rule 42(1)(b) of the Uniform Rules of Court, this Court withdraws the patently erroneous judgment dated 18 FEBRUARY 2025 and replace it with this judgment dated 5 MARCH 2025

 

Introduction:

 

[2]          The plaintiff was a passenger in a vehicle which was involved in a collision with another vehicle driven by the insured driver on 13 March 2021 at Klerksdorp.

 

[3]          The issues to be determined by this Court are the merits of the plaintiff’s claim and the quantum of damages to be awarded, should the claim be successful.

 

[4]          The defendant’s representative indicated that his instruction extended to a mandate on settlement, but not for trial.  During the proceedings the defendant was not represented before court.  The court satisfied itself that the defendant has due knowledge of the proceedings as the notice of set down was served on the defendant and the defendant was aware of the proceedings.  The trial went ahead despite the absence of the defendant.

 

[5]          No oral evidence was led by the plaintiff.  The plaintiff requested that her affidavits, as well as the affidavits of the medical experts, be accepted by this Court as evidence in terms of Rule 38(2) of the Rules of Court.

 

[6]          This Court made a ruling that the affidavits are accepted in terms of Rule 38(2).

 

Factual Background

 

[7]          The fact that the plaintiff was a passenger is supported by her statutory affidavit filed in terms of section 19(f) of the Road Accident Fund Act 56 of 1996.

 

[8]          On the basis that the plaintiff was a passenger she needs to prove 1% negligence by the insured driver in support of her claim. On finding that the insured driver was 1% negligent, the defendant is liable for 100% of the plaintiff’s proven damages. (See: Groenewald v Road Accident Fund (74920/2014) [2017] ZAGPPHC 879 (5 October 2017) para 3).

 

[9]          The accident report reflects that the insured driver caused the collision.

 

[10]       I therefore find that the plaintiff has proven the negligence of the insured driver on a balance of probabilities.

 

[11]       The merits of the plaintiff’s claim is upheld.

 

Quantum

 

[12]       The next issue to determine is the quantum of the plaintiffs claim.

 

[13]       The quantum of the claim concerns (a) general damages and (b) the plaintiff’s loss of earnings.

 

Medical experts reports

 

[14]       The following experts were appointed by the plaintiff to provide medico-legal reports:

 

• Dr Mothusi Modisane (Orthopaedic Surgeon)

• Dr Ajay Maharaj (Neurosurgeon)

• Dr Bongani Ngele (Neurologist)

• Lindiwe Mkhabela (Clinical Psychologist)

• Mabaso Ntwanwano Peggy (Occupational Therapist)

• Nontsikelelo Mzobe (Industrial Psychologist)

• Namir Weisberg (Actuary)

 

[15]       The hospital records confirm the date of the accident and the plaintiff’s initial injuries, including a Traumatic Head Injury, Left Femur Fracture, Zygomatic Arch Injury, and fractures to the left middle and ring fingers. The plaintiff was treated at Brits District Hospital and George Mkhari Academic Hospital, with a Glasgow Coma Scale of 13/15 initially, which improved to 15/15 by May 2021.

 

[16]       The injuries sustained by the plaintiff include:

 

16.1.                Traumatic Brain Injury.

16.2.                Left Femur Fracture (healed with angulation).

16.3.                Zygomatic Arch Injury

16.4.                Fractures to the Left Middle and Ring Fingers

 

[17]       The medical findings were that the plaintiff has suffered major injuries which includes a traumatic brain injury, femur fracture with angulation, and arch injury.

 

Medical Findings (Dr Modisane – Orthopaedic Surgeon)

 

[18]       Dr Modisane confirmed the injuries and noted ongoing discomfort in the left knee, hand, and upper back, exacerbated by physical activity. Despite treatment, the plaintiff is expected to experience residual symptoms, with a potential need for future surgery and physiotherapy.

 

[19]       Dr Modisane opines that the plaintiff’s employability may be limited due to her pain and physical limitations.

 

[20]       Dr Modisane concludes that the plaintiff will likely have a shortened working life and may be better suited for a low-demand job due to her physical limitations. The plaintiff may work until retirement age if rehabilitation succeeds, but failure to improve could result in early retirement.

 

[21]       The plaintiff may require ongoing conservative treatment, and if this fails, surgical intervention might be necessary in the future.

 

Medical Findings (Dr Maharaj – Neurosurgeon)

 

[22]       Dr Maharaj confirms the plaintiff’s injuries, including a mild head injury with neurocognitive deficits, supported by a Glasgow Coma Scale of 13/15 and symptoms of headaches and cognitive issues. The plaintiff has recovered motor functions but experiences ongoing cognitive symptoms. Dr Maharaj suggests further treatment for ongoing headaches and possible psychological intervention.

 

[23]       Dr Maharaj recommends compensation for the plaintiff’s damages, highlighting a shortened working lifespan due to the plaintiff’s physical and neurocognitive impairments. The plaintiff qualifies for general damages under the Narrative Test for Serious Injury Assessment.

 

[24]       Neurological Assessment by Dr. Bongani Ngele

 

Dr. Ngele assessed the plaintiff on 18 April 2024. The plaintiff sustained multiple injuries, including a traumatic brain injury, upper back injury, and injuries to the left knee and hand. She experiences cognitive impairments such as memory loss, poor attention, and executive functioning deficits, as confirmed by the MoCA score of 25/30. Additionally, she suffers from Post Traumatic Stress Syndrome Disorder (PTSD), emotional distress, anxiety, low mood, and anger issues, all of which significantly impact her quality of life, independence, education, and employment prospects.

 

[25]       Future Treatment and Impairment Evaluation

 

Dr. Ngele concluded that the plaintiff requires coordinated care from a multidisciplinary team, including neurologists, rehabilitation specialists, and mental health professionals, to comprehensively address her needs and maximize her quality of life. Her Whole Person Impairment was calculated at 16%.

 

[26]       Clinical Psychological Assessment by Lindiwe Mkhabela

 

Ms. Mkhabela assessed the plaintiff on 2 March 2023, focusing on residual problems in daily activities, leisure, and work. She recorded that the plaintiff had normal developmental milestones before the collision but now experiences persistent headaches, pain in the back, left hip, and leg, reduced concentration and memory, increased irritability, frequent crying, and bladder issues.

 

[27]       Neurocognitive and Psychological Findings

 

Ms. Mkhabela's tests revealed impairments in learning, memory, perceptual-motor skills, language, executive functioning, and complex attention. She attributed these deficits to the accident, given the plaintiff’s previously intact educational and employment history. She also found that physical injuries further worsened neurocognitive deficits, contributing to a diagnosis of Major Neurocognitive Disorder due to TBI with behavioral disturbances. Psychological interventions alongside medical treatment were recommended to improve prognosis.

 

[28]       Impact on Occupational and Interpersonal Functioning

 

Ms. Mkhabela noted that the plaintiff was previously employed in the mining sector in line with her qualifications but has been unable to secure employment post-accident. The cognitive and behavioral deficits make her prone to errors and negatively impact her interpersonal relationships with employers and colleagues. She diagnosed the plaintiff with Major Depressive Disorder with anxious distress, PTSD, and comorbid Major Neurocognitive Disorder due to TBI, emphasising the need for psychiatric and psychological intervention for a more favorable prognosis.

 

[29]       Future Psychological Intervention

 

Ms. Mkhabela recommended ongoing consultations and treatment by a clinical psychologist to address the plaintiff’s psychological issues.

 

[30]       Occupational Therapy Assessment by Mabaso

 

Ms. Mabaso assessed the plaintiff on 1 March 2023, to evaluate her functional ability post-accident and its impact on daily living and work. The plaintiff had no chronic illnesses or prior hospitalisations before the collision and had obtained a Grade 12 certificate along with competency certificates from Glencore and Alpha College. Her pre-collision employment required physical strength, which she was able to perform post-collision.

 

[31]       Residual Work Capacity and Employment Limitations

 

Ms. Mabaso’s assessment indicated that the plaintiff is suited for light work and can manage tasks involving shoulder-level work, above-crown-level work, and forward bending/stooping. However, her previous occupation fell under the medium work category, which exceeds her current physical abilities. She may require reasonable accommodation, negatively impacting her promotional prospects and limiting her future work choices, making her vulnerable in the open labour market.

 

[32]       Psychological and Neurocognitive Implications

 

According to Dr. Maharaj, the plaintiff sustained a mild head injury with cognitive deficits. Ms. Mabaso noted that these deficits would negatively impact the plaintiff’s workplace productivity, leading to errors, forgetfulness, and potential conflicts with colleagues and employers. Psychological issues such as emotional instability, aggression, and short temper may further affect her interpersonal relationships at work. Ms. Mabaso concluded that the plaintiff has suffered a decline in occupations requiring bilateral hand use, lower limb functionality, physical strength, and high cognitive and psychological demands.

 

[33]       Industrial Psychological Assessment by Mzobe

 

Ms. Mzobe assessed the plaintiff on 1 March 2023, using expert reports to evaluate the accident’s impact on her employment prospects. The plaintiff had obtained her matric and 3 competency certificates between 2011 and 2013 in mining-related fields.

 

[34]       Pre-Accident Employment History

 

The plaintiff was employed at Horizon Mine as a Mining Attendant from 2007 to 2011, earning R14,000 per month. She later worked at Exstrata Glencore as a Pipe Trackless Ventilation Miner, earning R13,500 per month. At the time of the collision, she was unemployed following retrenchment.

 

[35]       Post-Accident Employment and Lifestyle Changes

 

Ms. Mzobe reported that the plaintiff’s psychosocial functioning had changed significantly. Before the accident, she engaged in physical activities like jogging and exercising. After the accident, she prefers watching television and spending time at home with family, indicating a decline in social and recreational engagement.

 

[36]       The evaluation of expert evidence was discussed in Commentary of the Criminal Procedure Act (Du Toit) Chapter 24 Evidence, on page RS 64, 2020 C24-P29 where the author commented as follows:

 

“A particularly helpful and lengthy guide to the principles governing the use, admissibility and evaluation of expert evidence was provided by Vally J in Twine & another v Naidoo & another  [2018] 1 All SA 297 (GJ) at [18]. In that case the judge set out no fewer than 21 principles in a carefully constructed compendium that may profitably be consulted by any judicial officer faced with problematic expert testimony. Vally J assessed the role, duties and functions of both the expert witness and the court dealing with such evidence, pointing out that the expert witness, 'once an infrequent visitor to the court, now enjoys a daily presence’ there because of the increase in litigation as well as the vast 'growth and development of scientific and technical knowledge of the natural, physical, social and commercial world’.”

 

[37]       The plaintiff suffered physical injuries and mental health injuries.  The physical injuries include brain damage, loss of cognitive function and an angulated femur fracture, leading to chronic pain. There is a possibility that the femur fracture undergo surgery in future.  The plaintiff’s mental health injuries include the diagnosis of PTSD for which the plaintiff would require future psychological treatment.

 

Summary of Evidence on Employment Prospects and Loss of Earnings

 

[38]       Employment Prospects Before and After the Collision

Ms. Mzobe evaluated the plaintiff’s employability based on cognitive, emotional, and physical limitations, along with external factors like economic conditions and salary trends. Before the accident, the plaintiff was in the "achievement phase" of her career, working towards securing permanent employment and advancing within her field. With her qualifications (B4-C3-4), she was expected to reach her career peak by age 45, earning within the upper quartile of semi-skilled labor.

 

[39]       However, post-accident, the plaintiff has been significantly compromised due to accident-related injuries. Given her reliance on physical ability for employment and her limited work experience in sedentary employment, she will struggle to compete for and secure lighter work. If employed, she would require accommodations, negatively affecting her work performance, promotional prospects, and overall career trajectory.

 

[40]       Retirement and Loss of Earnings Calculations

 

Dr. Modisane concluded that the plaintiff might retire between ages 50 and 55. Since she was unemployed at the time of the accident, Ms. Mzobe found no past loss of earnings.  Actuary Mr. Waiseberg calculated her potential and actual post-collisions earnings under two contingency scenarios.

 

o    Past Loss of Income: Estimated at R402,776 based on pre-collision earnings.

o    Future Loss of Income: Plaintiff’s earnings would have been R3,006,302 but are now estimated at R840,561, leading to a total loss of R2,165,741.

o    Total Loss of Income: R2,568,517.

 

[41]       The calculations accounted for pre-collision employability without limitations, whereas post-collision, the plaintiff is highly compromised in future employment, reliant on accommodations, and facing a struggling job market.

 

Legal Precedents on Sympathetic Employment and Loss of Earnings

 

[42]       The legal principles regarding loss of earnings, particularly in cases of sympathetic employment, support the plaintiff’s claim:

 

42.1.                    De Melin David Gouveia 2010/19802 (2013) ZA GPJ HC 293: The court held that earnings from sympathetic employment should not be considered when assessing loss of earnings, recognising the plaintiff’s unemployability in the open labour market.

 

42.2.                    Santam Versekeringsmaatskapy Bpk v Byleveldt 1973 (2) SA 146 (A): The court confirmed that salaries paid on compassionate grounds, without actual work contribution, are not factored into loss of earnings claims.

 

42.3.                    Makuapane v Road Accident Fund (12871/12) 2015 (GSJ): Established that accident victims, even if employed post-collision, are entitled to damages if they can no longer function in their previous employment capacities.

 

42.4.                    Mvundle v Road Accident Fund (63500/09) 2012 (NG): Stressed that damages for loss of income are awarded when a person’s employment situation changes substantially, affecting job security and career options.

 

[43]       These cases reinforce that the plaintiff's post-collision employment limitations justify her claim for loss of earnings, given her diminished work capacity and reduced career prospects.

 

[44]       I find that the plaintiff is entitled to compensation for the loss of earnings that she suffered as a result of the collision. 

 

Summary of Evidence and Applicable Law

 

General Damages

 

[45]       The assessment of general damages is guided by past cases but must consider the unique circumstances of each case. In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), the court emphasised that prior awards serve only as a reference and not as a strict standard.

 

[46]       The following precedents illustrate general damage awards for similar injuries:

 

46.1.                Nsele v Road Accident Fund (70447/2019) [2021] ZAGPPHC 455

Plaintiff: 34-year-old male pedestrian

Injuries: Moderate to severe traumatic brain injury, femur fracture, facial and leg lacerations

General damages awarded: R1,100,000 (adjusted to R1,197,000).

 

46.2.                Claassens v Road Accident Fund (35716/2017) [2019] ZAGPPHC 471

Plaintiff: 34-year-old male involved in a motor vehicle collision.

Injuries: Moderate to severe traumatic brain injury, rib fractures, lung complications, chronic pain, surgical scarring, cognitive impairments.

General damages awarded: R1,200,000 (adjusted to R1,412,000).

 

[47]       In Mashigo v Road Accident Fund 2120/2014[2018] ZAGPPHC 539(13 June 2018) the following was said:

 

"[10] A claim for general or non-patrimonial damages requires an assessment of the plaintiff's pain and suffering, disfigurement, permanent disability, and loss of amenities of life and attaching a monetary value thereto. The exercise is, by its very nature; both difficult and discretionary with wide-ranging permutations. As will be illustrated herein later, it is very difficult if not impossible to find a case on all four with the one to be decided. The oft-quoted case of Southern Insurance Association v Bailey NO  1984 (1) SA 98 AD confirmed that even the Supreme Court of Appeal had difficulties in laying down rules as to how the problem of an award for general damages should be approached. The accepted approach is the "flexible one" described in Sandler v Wholesale Coal Suppliers Ltd  1941 AD 194 at 199, namely: the submissions were

 

"The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending on the Judge's view of what is fair in all the circumstances of the case"."

 

[11] Of course, awards in cases that show at least some similarities or comparisons are useful guides, taking into account the current value of such awards to accommodate the decreasing value of money. See inter alia: SA Eagle Insurance Co v Hartley  [1990] ZASCA 106[1990] ZASCA 106[1990] ZASCA 106; ; ;  1990 (4) SA 833 (A) at 841 D and the practical work of The Quantum Yearbook by Robert J Koch which includes tables of general damages awards annually updated to cater for inflation.

 

[12] In respect of the issue of comparable cases and the guidance provided thereby, the Supreme Court of Appeal has stated in Protea Assurance Co Ltd v Lamb  1971 SA 530 at 536 A - B: "Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time, it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration".

 

[48]       It is argued on behalf of the plaintiff that these cases support the plaintiff’s claim for general damages of R1,000,000.

 

[49]       Having regard to the matters referred to, as well as the principles applied that the plaintiff’s individual circumstances dictate this Courts discretion, I find that an amount of R900,000 is a just and reasonable amount of compensation for general damages.

 

Loss of Income and Earning Capacity

 

[50]       The court assesses loss of earnings by estimating what the plaintiff would have earned had the accident not occurred, compared to her current earning potential. The principles governing these calculations are established in:

 

50.1.                Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) – It is recognised that assessing damages for loss of earnings involves inherent uncertainty.

 

50.2.                Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) – Courts rely on either a broad estimation or mathematical calculations based on evidence, acknowledging that both involve an element of speculation.

 

50.3.                Hersman v Shapiro and Co 1926 TPD 379 – Stated that once pecuniary damage is established, the court must determine an amount based on available evidence.

 

50.4.                Anthony and Another v Cape Town Municipality 1976 (4) SA 445 (A) – The court must make an informed judgment on future losses, even if speculative.

 

50.5.                Union and National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A) – Allowed damages for impairment of earning capacity.

 

50.6.                In Roe v Road Accident Fund QOD Vol vi J2-59, Van Oosten J reaffirmed these principles, emphasising the need to calculate the present monetary value of earnings lost due to injury.

 

[51]       The actuary, Mr. Waiseberg, applied these principles and calculated the plaintiff’s loss as follows:

 

·         Total Loss of Income: R2,568,517

·         Total General Damages: R1,000,000

 

[52]       A total loss of R3,568,517 is submitted to be a reasonable compensation to the plaintiff for the damages suffered as a result of the collision.

 

Evaluation of expert evidence

 

[53]       In Ralph v Road Accident Fund (3069/2018) [2023] ZAFSHC 102 (3 February 2023) a detailed approach on the determination of contingencies is set out as follows by Molitsoane, J:

 

“[20] The court in Oosthuizen v Road Accident Fund 2015 JDR 1717 (GJ) gave a useful summary of case law on contingencies and I refer extensively as follows:

 

“Matters which cannot otherwise be provided for or cannot be calculated exactly, but which may impact upon the damages claimed, are considered to be contingencies, and are usually provided for by deducting a stated percentage of the amount or specific claims. (De Jongh v Gunter  1975 (4) SA 78 (W) 80F).

 

Contingencies include any possible relevant future event which might cause damage or a part thereof or which may otherwise influence the extent of the plaintiff’s damage. (Erdmann v SANTAM Insurance Co Ltd  1985 3 SA 402 (C) 404-405; Burns v National Employers General Insurance Co Ltd  1988 3 SA 355 (C) 365).

 

In a wide sense contingencies are described as “the hazards that normally beset the lives and circumstances of ordinary people”. (AA Mutual Insurance Association Ltd v Van Jaarsveld  1974 4 SA 729 (A); Van der Plaats v SA Mutual Fire & General Insurance Co Ltd  1980 3 SA 105 (A); Southern Insurance Association Ltd v Bailey 1984  1 SA 98 (A) 117). Contingencies have also been described as “unforeseen circumstances of life”. (De Jongh v Gunther  1975 (4) SA 78 (W) 80F).

 

The percentage of the contingency deduction depends upon a number of factors and ranges between 5% and 50%, depending upon the facts of the case. (AA Mutual Association Ltd v Maqula 1978(1) SA 805 (A) 812; De Jongh v Gunther 1975(4) SA 78 (W) 81, 83, 84D; Goodall v President 1978(1) SA 389 (W) 393; Van der Plaats v SA Mutual Fire & General Insurance Co Ltd 1980(3) SA 105(A) 114-115A-D).

 

Contingencies are usually taken into account over a particular period of time, generally until the retirement age of the plaintiff (Goodal v President Insurance Co Ltd  1978 1 SA 389 (W) 393; Rij NO v Employers’ Liability Assurance 19 64 (4) SA 737 (W); Sigournay v Gillbanks  1960 2 SA 552 (A) 569; Smith v SA Eagle Insurance Co Ltd  1986 2 SA 314 (SE) 319).

 

Often, what is described as a “sliding scale” is used, under which it is allocated a “1/2% for year to retirement age, i.e 25% for a child, 20% for a youth and 10% in middle age”. (Goodall v President Insurance Company Limited 1978(1) SA 398(W) and Road Accident Fund v Guedes 2006(5) SA 583(A) 588D-C. Likewise, see Nonwali v Road Accident Fund (771/2004) [2009] ZAECMHC 5 (21 May 2009) (para 23))

Colman J provided a useful exposition Burger v Union National South British Insurance Co  1975 (4) SA 72 (W) 75 of the approach to be adopted by the Court:

 

“A related aspect of the technique of assessing damages is this one; it is recognized as proper, in an appropriate case, to have regard to relevant events which may occur, or relevant conditions which may arise in the future. Even when it cannot be said on a preponderance of probability that they will occur or arise, justice may require that what is called a contingency allowance be made for a possibility of that kind. If, for example, there is acceptable evidence that there is a 30 percent change that an injury to the leg will lead to amputation, that possibility is not ignored because 30 percent is less than 50 percent and there is therefore no proved preponderance of probability that there will be an amputation. The contingency is allowed for by including in the damages a figure representing a percentage of that which would have been included if amputation had been a certainty. That is not a very satisfactory way of dealing with such difficulties, but no better way exists under our procedure.”

 

But the difficulty with this approach was appreciated by Margo J in Goodwill v President Insurance  Co Ltd 1978(1) SA 389 W at 392H:

 

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

 

[54]       In Southern Insurance Association Ltd v Bailey 1984   1 SA 98 (A) 113H-114E the following was said:

 

“Any enquiry into damages for loss of earning capacity is of its nature speculative

…..

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 which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an 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. It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a non possumus attitude and make no award.

……..

In a case where the Court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, while the result of an actuarial computation may be no more than an ‘informed guess’ it has the advantage of an attempt to ascertain the value of what was lost on a logical basis; whereas the trial Judge’s ‘gut feeling’ (to use the words of appellant’s counsel) as to what is fair and reasonable is nothing more than a blind guess.”

 

[55]       The determination of contingencies includes factors such as the plaintiff’s age, the extent of the injuries, the prospect of finding new employment suitable to her diminished employment capacity, retirement age should she have continued with her employment, her qualifications and her mental health.

 

[56]       The plaintiff’s claim for loss of income is supported by medical, occupational, and industrial psychology expert reports, alongside established legal principles. Given her diminished employability and the precedent for awarding damages in similar cases, it is submitted on behalf of the plaintiff that an award of R3,4685,514 is justified to compensate for general damages and loss of earnings.

 

[57]       In the premise, I find that an amount of R3,400,00 is a just and fair amount in compensation of the plaintiff’s general damages and loss of earnings.

 

Contingencies

 

[58]       In the matter of Duma v Road Accident Fund 2019 KZN Pietermaritzburg, pre-morbid and post morbid contingency was set at 7%.  The claimant in the Duma matter was 54 years of age.

 

[59]       I have regard to the following material facts that would impact the determination of the appropriate contingencies:

 

59.1.                The plaintiff suffered brain injuries that leads to limited employment possibilities.

 

59.2.                The plaintiff suffered physical injuries that results in limited employment possibilities that involve sedentary work.

 

59.3.                There is a possibility that the plaintiff has to undergo further surgery on her femur fracture that healed with an angulation.

 

59.4.                The plaintiff suffered mental health injuries such as PTSD, anxiety and depression.

 

59.5.                The plaintiff would find occupations requiring bilateral hand use, lower limb functionality, physical strength, and high cognitive and psychological demands, extremely hard to compete in an open employment market.

 

59.6.                The plaintiff would no longer be able to function in her previous employment capacities.

 

59.7.                With her qualifications she was expected to reach her career peak by age 45, earning within the upper quartile of semi-skilled labor.

 

59.8.                The bodily injuries will leave the plaintiff in pain on a frequent basis.

 

59.9.                There is a real possibility that the plaintiff will have to undergo surgery to heal the angulated femur fracture.

 

[60]       In Southern Insurance Association Ltd v Bailey NO   1980 (3) SA 105 (A) the Appeal Court (as it then was) affirmed that contingencies must be applied with judicial discretion based on probabilities. In Goodwill v President Insurance  Co Ltd 1978(1) SA 389 W it is found that a general guideline of 0.5% per year of work-life expectancy could be applied, but this is flexible.

 

[61]       Having regard to the specific injuries suffered by the plaintiff, and the individual circumstances of the plaintiff, as set out above, I find that a contingency application of 15% would be appropriate.

 

[62]       Having found that quantum in the amount of R3,400,000 is a fair amount in compensation of the plaintiff’s claim, the application of 15% contingencies lead to a quantum of R2,975,000.

 

Future medical expenses

 

[63]       The plaintiff seeks a certificate in terms of the Road Accident Fund with which her future medical expenses resultant of the collision, will be paid by the defendant.

 

[64]       I find no reason why such a certificate should not be granted.

 

Costs

 

[65]       The general principle is that a party that is successful in litigation, is entitled to its costs occurred in the litigation proceedings.

 

[66]       I find no reason to deviate from the general principle.

 

[67]       The defendant is to pay the cost of the plaintiff on Scale B.

 

Order:

 

[68]            In the premises I make the following order:

 

i)             The plaintiff’s claim is upheld.

 

ii)            The defendant shall pay the sum of R2,975,000 (Two Million Nine Hundred and Seventy Five Thousand Rand) for general damages and loss of income of the plaintiff, to the plaintiff’s attorneys, Lekhu Pilson Attorneys, payable by direct transfer into their trust account with the following details:

 

ACCOUNT HOLDER             : LEKHU PILSON

                                                 ATTORNEY TRUST

                                                 ACCOUNT

BANK                                    : NEDBANK

BRANCH CODE                   : 198765

ACCOUNT NUMBER           : 1[...]

REFERENCE NUMBER :

J LEKHU/BS/LPM/P/800173

 

iii)           The defendant is ordered to pay the plaintiff’s taxed or agreed party and party costs on a High Court Scale B, which costs shall include cost of counsel and experts.

 

iv)           The defendant shall provide to the plaintiff an Undertaking in terms of Section 17(4)(a) of Act 56 of 1996, for the payment of 100% of the costs of Masilela Sylvia Boitumelo for future accommodation in a hospital or nursing home or treatment of or rendering of a service to him/her or supplying goods to him/her, unlimited to the expenses incurred thereunder, arising out of the injuries sustained by him/her in the motor vehicle collision which occurred on 21 August 2021, after such costs have been incurred and upon proof thereof.

 

v)            There is a contingency fee agreement between the attorney and the plaintiff, which complies with the Contingency Fee Agreement Act.

 

 

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

 

 

 

DATE OF HEARING:          22 JANUARY 2025

DATE OF JUDGMENT:     5 MARCH 2025

 

APPEARANCES:

 

FOR PLAINTIFF:                                ADV AK MALULEKA

 

INSTRUCTED BY:                              LEKHU PILSON ATTORNEYS

                                                            MUCKLENEUK, PRETORIA

                                                            TEL: 012 323 4547

                                                            REF: J LEKHU/BS/B00173

                                                            EMAIL: jlekhu@lekhupilson.co.za

                                                                         bshongw@lekhupilson.co.za

                                                            C/O RS TAU ATTORNEYS

                                                            MAHIKENG

                                                            TEL: 081-381 8691

                                                            REF: MR MAFORA / COR 01/23

 

FOR DEFENDANT:                           NO APPEARANCE

INSTRUCTED BY:                              STATE ATTORNEYS

                                                            CELL: 0[…]

                                                            EMAIL: nonkululekom@raf.co.za

                                                            Link: 5224286

                                                            Ref: 5224286/24/N MATHEBULA

                                                           

---