(EASTERN CAPE, GRAHAMSTOWN) CASE NO.: 868/2010 DELIVERED: 20 SEPTEMBER 2013 THE ROAD ACCIDENT FUND JUDGMENT

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1 1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO.: 868/2010 HEARD: 9 SEPTEMBER 2013 DELIVERED: 20 SEPTEMBER 2013 In the matter between: THANDISILE JOHNSON TOBI PLAINTIFF and THE ROAD ACCIDENT FUND DEFEDNANT JUDGMENT ZILWA, AJ [1] The present action arises out of a motor vehicle collision that occurred on 5 April 2005 on the R72 road near Nanaga, between a truck with registration letters and numbers, CZW 651 EC and another truck with registration letters and numbers, BDD 614 EC, which was driven by one X J Mlumiso. [2] The merits of the claim were settled between the parties and on 17 August 2011 Mr Justice Tshiki granted an Order by agreement, in terms whereof the Defendant was held liable for 80% of Plaintiff s proved damages arising from the said collision. [3] When the matter came before me on trial the only remaining issue for determination was the quantum of damages to be awarded to the Plaintiff in consequence of the injuries he sustained in the collision.

2 2 [4] At the commencement of the trial before me I was informed by Mr Frost, who appeared for the Plaintiff, that the following heads of damages had been agreed upon: (i) that the plaintiff s past hospital expenses are in the amount of R ,91; (ii) the plaintiff s past medical expenses are in the sum of R37 779,18; (iii) that the defendant would furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act which is limited to 80% of the Plaintiff s future medical, hospital and related expenses; (iv) that the Plaintiff s past loss of income is in the sum of R41 895,00; (v) to the above figures a 20% apportionment will be applied. [5] With the agreement stated in the preceding paragraph the only remaining issues for determination in respect of which the parties could not reach agreement are the following: (i) The plaintiff s general damages; (ii) The plaintiff s damages for future loss of income or earning capacity. [6] In his amended particulars of claim the plaintiff claims general damages in the sum of R ,00 and in respect of the future loss of earnings Plaintiff claims an amount of R ,00. I was further informed that the parties had agreed to the Plaintiff s future loss of earnings being quantified at the said figure of R ,00 as the capital amount without general contingency deduction. All that is required of me is to adjudicate on the proper contingency deduction that is to be applied to the plaintiff s future loss of earning capacity in the aforesaid amount which has been

3 3 actuarially calculated by Munro Consulting Actuaries. On the one hand, the Plaintiff contends for a 10% deduction while on the other hand the Defendant contends for a 30% deduction. [7] The parties further agreed that over and above the 20% apportionment deduction an amount of R ,26, which represents the award that was made to the Plaintiff by the Compensation Commissioner also has to be deducted from whatever amount is awarded to the Plaintiff in this action. [8] A further agreement was reached between the parties that medico legal reports by the following expects, Dr W Wickens, Dr D Solomons, Dr P Matley, Dr K Piro, Ms N Boreham; Ms L Strauss, and Mr A Munro, which form part of the paginated record, may be handed in as evidence without formal proof thereof and the Court can accept the correctness of such reports. [9] After the abovementioned agreements had been confirmed on behalf of both parties by their counsel, the plaintiff s case was commenced by leading the evidence of the plaintiff himself, Mr Thandisile Johnson Tobi. [10] Summarily, the plaintiff s evidence was to the following effect: He is a 49 year old man, married with six children, three girls and three boys. Three of his children have already left school after passing Grade 12, while the other three are still schooling. The reason for the three children not proceeding with their studies after Grade 12 is because plaintiff does not have money to pay for their further education. Such inability is caused by the injuries that he suffered in the collision, which have caused him to be unable to generate sufficient income to further the children s education. The inability to generate the said income is caused by the fact

4 4 that plaintiff can no longer do overtime and special trips that he used to do before the accident. [11] Before the accident, over and above doing overtime duties and undertaking special trips at his place of employment, plaintiff also used to do welding on weekends at his place of residence for purposes of generating additional income, which he can no longer do in consequence of the injuries sustained in the accident. Such welding jobs could generate income of as much as R5000,00 at a time when he would be engaged to burglar proof a whole house. [12] Since the accident plaintiff can no longer drive for long periods and this necessitated him to obtain a co-driver to assist him. Before the accident plaintiff had no debts, save for the subsidy house debt that it was easy to pay and in respect of which he now experiences extreme difficulty in paying because of his reduced income. This financial inability on the part of plaintiff is very depressing to him and is it affecting his health. His inability to sufficiently provide for his family in the fashion in which he used to do before the accident, especially his inability to pay for his children s further education for purposes of building their future, makes him feel very bad. He is the sole breadwinner at his home as his elder children and wife are unemployed. He entertains fears of losing his house because of his inability to pay the necessary subsidised payments. He finds himself in a parlous financial situation which he never experienced before the accident. [13] The plaintiff has a Code 14 driver s licence, which he obtained in 2002, and which enables him to earn a lot more than he did when he only had a Code 10 driver s licence. There is lot of market for a driver who has a Code 14 driver s licence. Were if not for the accident he had planned to retire at age 65 or even beyond if he still felt strong enough to work. He liked and enjoyed driving before the accident, but since the accident driving for a living has became an ordeal for him. His youngest child

5 5 was born in 1995 and he is keen to be able to afford to take the child to college or university after matric. He also has three grandchildren who are still young, the youngest being one year old. He is sometimes able to play with them when he experiences less pain but they are scared of the injury in his left leg, which is unsightly. At the request of his counsel the plaintiff showed the court the injuries on his legs. The court observed that the plaintiff s left leg is very badly disfigured and unsightly, with lots of scarring. The right leg has less scarring and disfigurement. [14] Dr Solomons describes the plaintiff s scars as follows. There is a 9cm long slightly oblique well healed scar to the right forehead. It is obvious but not severely disfiguring. There is no associated loss of function. There is over the upper calf of the left lower leg an extensive hyper-pigmented well healed, indurated scar with an irregular surface. It measures about 38cm across and 16cm vertically. Distal to the scarred area the remainder of the calf and ankle are swollen and very indurated. On the anterior, medial lateral aspect of the left thigh the sight of the skin graft donor area is smooth and hyper-pigmented. There is below and medial to the right kneecap two parallel, well healed scars each measuring 7 to 9cm long. Over the upper right shin there is a flat, smooth, irregular shaped scar about 6X2.5cms. [15] Dr Solomons opines that the plaintiff has been left with very large unsightly scarred area on his upper left calf and very marked swelling of the leg distal to this. He stated that this is due to interference with the venous and lymphatic return from the lower part of the leg and foot. [16] Dr Solomons opines that as the plaintiff grows older he may develop ulceration of the indurated area due to blockage of the venous blood supply. The lower leg is an area easily traumatised.

6 6 [17] Dr Matley, a specialist vascular surgeon, opined that the limb girth measurements indicate a considerable amount of chronic swelling involving the left calf and foot and possibly some muscle wasting involving the left thigh. According to Dr Matley the plaintiff sustained a very significant soft tissue injury to the left lower leg. This undoubtedly divided most of the lymphatics and the subsequent debridement and spilt grafting has left him with a chronically swollen leg with all the features of secondary lymphodema. There may be some venous component to his problem but this is uncertain. The plaintiff will have a grossly deformed and enlarged left leg for the rest of his life. This will limit his ability to mobilise and exercise and is undoubtedly a factor in his current obesity problem. It is very likely that as a result he will find continued ambulation progressively more difficult with time and undoubtedly this threatens his mobility to remain employed as a truck driver. [18] Dr Matley also opines that the plaintiff is at great risk in the future of repeated episode of cellulites. There is always a risk of ulceration associated with this but it should be possible to minimise this risk by appropriate use of elastic support. The likelihood of requiring amputation in the future is extremely small. However, no operation will improve the situation. [19] Dr Solomons also opines that should ulceration occur it is extremely difficult to get permanent healing of venous ulcerations. Local dressing and even skin grafts, may be required and even then the reoccurrence rate is high. The plaintiff should wear an elastic stocking for the rest of his days. [20] The plaintiff further testified that both legs cause him great pain as both kneecaps were injured in the accident and he experiences great difficulty in walking since both knees and the left ankle are painful when he moves. He experiences difficulty in walking from his home to the bus stop, which is a distance away. Walking up and down the steps is difficult and the pain is worse in his legs in inclement weather. On

7 7 some days the pain in his legs is so bad that his supervisor at work orders him to return home to rest. Since he can no longer bend or squat he cannot continue with the welding jobs that he used to do on weekends before the accident. He can no longer do gardening or households chores. When he has driven long distances the left leg swells to the extent that he cannot even take off his pants and he has to be assisted by his wife in so doing. He can no longer wear shorts like he used to do before the accident because people stare at his legs in horror. This makes him feel bad and embarrassed. Bathing and engaging in sexual activity is also difficult for him since the accident. He can no longer use a bath for washing and he has to use a washing basin, which is easier to use. [21] The only reason he had to return to work after the accident is because his family was starving and he felt obliged to continue working despite the pain caused by the injuries sustained in the accident. After the accident a special new truck had to be sourced for him by his employers. It has softer controls and it is less difficult to drive. It is very difficult for him to get on and off a truck and when he sits in a truck for a long period his legs becomes stiff and he has to rest. He has to ask other people to assist him in his work. Even though up to now people are willing to assist him they mourn a lot when they do so because it interferes with their own jobs. [22] He has been working for the same employer since Besides the scars in his legs he also has scars in his forehead and stomach from the accident. [23] His injuries have greatly changed his life in that he used to be a hard worker who did not require assistance from anybody in doing his job but now he has to ask other people for help. Socially his life has changed and he does not socialise anymore because people pity him and this makes his to prefer to stay at home. He can no longer attend soccer or rugby matches with his friends as he used to do before the accident and he has had to sell his car with which he and his friends used to go to the

8 8 sport activities. He has sold most of his welding equipment since he can no longer weld. [24] Before the accident his wife stayed in Peddie but after the accident she had to move and stay with him in Port Elizabeth since he is not capable of doing everything for himself. He takes medication for his pain, which at times becomes so bad that it even wakes him up from sleep. [25] Even though the retirement age at the company he works for is 60 years some drivers are retained beyond that age and there is one who is 63 years old but still driving. In fact even if, had the accident not occurred, his company would not retain him beyond 60 he would find another driving job elsewhere since code 14 drivers are in high demand. [26] After the plaintiff had finished giving his testimony his case was closed without calling any other witness for the plaintiff. The defendant also closed its case without leading any evidence. After filing heads of argument the parties have argued their respective positions. As already indicated, Mr Frost, plaintiff s counsel, has argued for general damages to be awarded in the claimed amount of R ,00 and for a 10% contingency deduction in the amount that is awarded to plaintiff for loss of future earning capacity. On the other hand, Ms Watt, who appeared for the defendant, has argued that an amount of R ,00 would be appropriate for the plaintiff s general damages and that a 30% contingency deduction should be applied to the amount awarded for the plaintiff s future loss of earning capacity. It is in respect of these competing submissions that this court has to pronounce.

9 9 GENERAL DAMAGES: [27] It is trite law that in making an award for general damages comprising pain and suffering, disfigurement, permanent disability and loss of amenities of life a trial court in considering all the facts and circumstances of a case has a wide discretion to award what it considers to be fair and adequate compensation to the injured party. See Road Accident Fund vs Marunga 2003 (5) SA 164 (SCA) at 169 E-F. [28] The nature and the extent of the injuries sustained by the plaintiff in the accident are common cause. On the evidence before the court there can be no doubt that the plaintiff was severely injured in the accident and that in consequence of such injuries his life has permanently changed for the worse. The medico-legal reports that have been prepared by the various medical expects that examined the plaintiff and the sequelae of the plaintiff s injuries as chronicled therein, leave no doubt about such fact. [29] In the exercise of its discretion with regard to the appropriate amount that is to be awarded as general damages the court has to be fair and reasonable to both parties. Whilst the plaintiff must be sufficiently and properly compensated for the injuries he has suffered in the accident, the defendant should not be unnecessarily burdened with an inordinately high award despite the recent tendency by the courts to pitch the awards higher than in the past. See De Jongh vs Du Pisanie N.O. [2004] All SA 565 (SCA). [30] In making its assessment for general damages the court will of course be guided by past awards that have been made in generally comparable cases. However, it must always be borne in mind that it is a very rare occurrence indeed for a case to be almost on all fours with another decided case. Accordingly, past awards serve no more that to give some indication as to what sort of awards are appropriate on the

10 10 facts of a particular case. In striving to determine a fair amount for general damages, the court must decide by the broadest general considerations on an amount which is considered to be fair in all the circumstances of the case. See Bay Passenger Transport Ltd vs Franzen 1975 (1) SA 269 (A) at 274. The Supreme Court of Appeal has summarized the proper approach as follows: 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 and broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. All 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 the sequelae may have been either more serious or less than those in the case under consideration. See Protea v Lamb 1971 (1) SA 53D at 536 A-D. It is furthermore trite law that previous awards should be updated to make provision for the decrease in the value of money. It must, however, be borne in mind that our courts are hesitant to follow the Consumer Price Index slavishly. See Norton v Ginsberg 1953 (4) SA 537 (a) AT 551; and AA Onderlinge Assuransie Assosasie Bpk vs Sodoms 1980 (3) SA 134 (A) at 141. [31] As already indicated, the injuries sustained by the plaintiff in the accident were severe. He has experienced, and continues to experience considerable pain, suffering and discomfort since the accident, which occurred more than eight years ago. As the medical reports reflect and as the plaintiff himself has testified, he still continues to experience extreme discomfort in performing normal daily chores and he has to resort to asking other people to assist him in the performance of such chores, which he would normally have performed without any difficulties had the accident not occurred.

11 11 [32] It appears that before the accident the plaintiff was an energetic diligent individual who performed his normal tasks, both at work and at home, with alacrity. Because of the injuries suffered in the accident he can no longer perform such tasks without assistance. [33] As the medical reports indicate and as the court has viewed and noted the injuries to the plaintiff s legs, particularly the left leg, plaintiff is severely and permanently scarred in his lower limbs. He experiences constant pain almost on a daily basis and he can no longer enjoy the amenities of life that he used to enjoy prior to the accident. He can no longer even participate in sexual activity with his wife with enjoyment and without discomfort. His social life has almost ground to a stop. He uses medication daily to cope with the constant pain and all indications are that he will never be free from pain for any considerable period of time as long as he lives. The injuries to his legs are so unsightly that he can no longer wear shorts as he used to before the accident and he has to hide then behind long trousers. The effect that his injuries have had in his social life, as testified by the plaintiff, has not been gainsaid and there can be no doubt that the injuries have greatly affected both his social and employment life quite adversely. There are prospects, although remote, of the plaintiff developing ulcerations which would require local dressing and even skin grafts in the future. [34] In their Heads of Argument the parties counsel have helpfully referred me to a number of decided cases where awards for general damages were made in comparable situations. One of such cases is Nxumalo vs SA Eagle Co Ltd and Others 1995 (4) QOD G 5-1 (N) where the plaintiff was awarded general damages in the sum that is equivalent of R ,00 in today s rand terms after sustaining injuries that are not too dissimilar with the injuries sustained by plaintiff in the present case. However, the plaintiff s disability in the Nxumalo case was described as a mild functional disability which will not interfere with plaintiff s normal daily activities, her ability to attend school and educate herself. Her disfigurement was

12 12 also limited to the right lower limb. In Solomon and Another NNO vs De Waal [1972] 2 All SA 112 (A) the plaintiff, whose injuries consisted of, amongst the other things, a horrible scar on her thigh which necessitated a skin graft and which caused a severe and unsightly cosmetic deformity, was awarded an amount which in the current 2013 rand terms would amount to R ,00. However, a crucial distinction between the plaintiff s injuries in Solomon s case and the present case is that in the former the main disability at the date of the trial was a cosmetic one rather than a functional one. In casu the plaintiff has suffered both a cosmetic as well as a permanent functional disability. This, in my view, pitches his damages higher. [35] In the unreported matter of Morne van Eeden v Road Accident Fund Case No. 2069/2011, Eastern Cape, Port Elizabeth, judgment dated 9 April 2013, the plaintiff, a 36 year old male was awarded R ,00 for a comminuted fracture of the left tibia and fibula, an injury to the left ankle and a psychological injury. The plaintiff was grossly disfigured on his left leg and only wore long trousers. His entire life had been affected by this injury and he was struggling to cope with every day tasks. The plaintiff was sad and negative. He reported that he was tired of the continuous struggle with the pain, specifically during his working day. He was concerned about his ability to remain employed and worried about financial security and his ability to remain independent financially. He had become negative and short tempered and avoided social contact. He often had to call his friend for assistance to manage the steps at his flat. He could no longer play social tennis and jog. He could only drive short distances. His work was demanding as he was required to stand and walk for 90% of the day. He was also required to climb into delivery trucks to inspect goods before offloading. The plaintiff later resigned from his employment. The plaintiff could be employed in a position with mainly sedentary demands. Practically he would find it difficult to obtain sedentary type employment and was for all intents and purposes unemployable. Plaintiff had to live with constant pain and was unable to function normally either in a working environment or socially. His injuries were life changing and the prognosis in respect thereof poor. A real possibility existed

13 13 that his injuries might deteriorated further to a point where the amputation of the left leg might become inevitable. [36] In my view the facts in Van Eeden s case are the most closely comparable to those in the present case and the judgment therein is most useful with regard to the applicable parameters for an appropriate award to be made herein. However, it should be borne in mind that the injuries sustained by Van Eeden were to his left leg only, unlike in the present case where there are further injuries. [37] Having taken into account the undisputed contents of the medical reports that have been filed on plaintiff s behalf, the ungainsaid evidence given by the plaintiff himself with regard to the nature and sequelae of the injuries he sustained in the accident, and taking proper guidance from previous awards made in generally comparable situations I have, in the exercise of my discretion, concluded that a fair and proper amount that should be awarded to the plaintiff for his general damages is the sum of R ,00. CONTIGENCIES TO FUTURE LOSS OF INCOME/EARNING CAPACITY: [38] As already pointed out above, the actuarial report of Munro Consulting Actuaries, which quantified the plaintiff s future loss of earning capacity in the sum of R ,00 has been admitted by the defendant. All that remains for determination is the appropriate of contingency deductions to be applied to such loss. [39] Contingencies relate to any possible relevant future event which may cause the damages or any part thereof, or which might otherwise influence the extent of the plaintiff s damages. These would include, inter alia, considerations such as taxation, the possibility of early death, periods of sickness, other accidents, saved costs, the

14 14 possibility of a future loss of employment, promotion prospects and the like. In a wide sense, contingencies are described as the hazards that normally beset the lives and circumstances of ordinary people. See Nienaber vs RAF (2012) JOL (GSJ) at paragraph (5). Contingency deductions therefore imply that provision made for the prospective loss at the time of assessment of the damages might in any event possibly have occurred independently of the accident in question. See Southern Insurance Association Ltd vs Bailey N.O (1) SA at 116 (G) to 117 (A). [40] The usual effect of an unjustment based on contingencies is that the amount of damages is reduced by a percentage which may vary between 5% and 50%. However, contingencies should logically not always reduce damages since it should also be possible to consider positive contingencies which may increase the damages. See Southern Insurance Association Ltd vs Bailey N.O. (supra) at 117 B-C. [41] The provision for contingencies falls squarely within the subjective discretion of the trial Judge on what is reasonable and fair. See Southern Insurance Association Ltd vs Bailey N.O. (supra)116h to 117A. There are no fixed rules in this regard. Direct evidence in this issue cannot be given by an actuary. Actuarial evidence serves only as a guide to the Court. See Shield Insurance Co & D vs Hall (1976) (4) SA 431 A to 444 F. [42] The evidence that has been presented on behalf of the plaintiff is that he is employed by Inter Town Transport (ITT) as a Code 14 driver since A summary of his evidence with regard to his employment and the fact that prior to the accident he earned an additional income from over time and extra trips or special trips has been already referred to earlier on in this judgment. A reference has also been made to his evidence that he made extra money out of his welding work which he did during weekends.

15 15 [43] The dire financial situation of his family that forced the plaintiff to return to work after the accident, despite the adverse effect of the injuries sustained in the accident in his working ability, has already been referred to above. The plaintiff was still on crutches at the time when he returned to work as a truck driver during July 2005 and he had to return to work as his salary would otherwise have been stopped by his employers. [44] In his medical report Dr Piro quoted Mr Tomlinson, the managing director of ITT, the plaintiff s employer stating Mr Tobi should not be working. He cannot work any more. He just keeps working to stay alive. He is well mannered and has a different way of thinking than the other drivers. He is a humble gentleman. [45] Mrs Borham, the defendant s occupational therapist, states that the plaintiff is a motivated man who has a good work ethic and he would have continued to work until retirement age. [46] After stating the immense difficulties that he experiences at work because of his injuries the plaintiff testified that he intends to resign from his employment as soon as the matter is finalised so that he can properly look after his injured leg. This evidence was not challenged by the defendant s counsel in cross-examination and, as such, there would be no reason not to accept it. [47] Dr Piro is of the opinion that if the plaintiff pre-accident would not be granted an opportunity to work until age 65 with ITT and he had to retire at age 60 as per company policy, there is no reason why an experienced driver with his references could not find an alternative position for a further five years earning a similar salary. This opinion could not been contested or gainsaid by the defendant. As already indicated, in his oral testimony the plaintiff testified that he intended to work up to

16 16 and even beyond age 65, had he not been injured. His uncontested evidence was that Code 14 drivers are in high demand and he would have no difficulty in finding employment as a truck driver up to and even beyond age 65. As already indicated, he cited examples of Code 14 drivers who are 63 years and older. Given the plaintiff ungainsaid evidence as to how dedicated he is in providing for his family and his love for driving prior to the accident, there would be no reason to doubt this contention by the plaintiff. After all, despite his severe injuries, plaintiff showed enough dedication for his family s financial provision to force himself to continue working despite the huge pain and hardship that this was causing him personally in view of his injuries. In my view this is a clear indication that indeed had it not been for the accident the plaintiff would have continued working up to and beyond 65 years of age. [48] The plaintiff s actuary has calculated his retirement age only up to age 65 and not beyond. [49] Dr Piro s evidence that after a visit to the plaintiff s place of employment an in depth understanding of his job requirements from both the employer, Mr Tomlinson, and the plaintiff himself, it appears that he is not physically capable to remain in his position as driver, is uncontested. According to both the plaintiff and Dr Piro the only reason the plaintiff continues to work despite the pain and discomfort that he suffers in continuing with his employment is to support his family. As already indicated, his express intention to resign from employment as a truck driver as soon as this matter is finalised has not been gainsaid and in my view it is acceptable and probable. [50] The plaintiff has further testified that driving trucks is the only type of job that he can do and it was never put or suggested to him that he is capable of earning an income from any other source. In the premises, and in the light of the ungainsaid evidence that the plaintiff is no longer capable of continuing with his driving duties

17 17 because of his injuries, he can be regarded as permanently unemployable on the open labour market in any capacity in the future. [51] In his report the actuary, Dr Koch, has referred to the case of Goodall vs President Insurance 1978 (1) SA 389 (W) for his suggestion that in the plaintiff s case the contingency deduction should be 10%. In the said case the plaintiff was aged 45 whereas the plaintiff in this matter is age 49. In the case on Goodall the court stated that when assessing damages for future loss of earnings in an action of damages for personal injuries sustained, in the assessment of proper allowance for contingencies arbitrary considerations must inevitably play a part, for the art or science of foretelling the future, so confidently practised by ancient prophets and soothsayers, and by modern authors of a certain type of almanack, is not numbered amongst the qualifications for judicial office. The court, after taking into account that, although the plaintiff s working life had been undistinguished he had been a pretty steady employee, changing his job only in anendevour to improve his prospects. The plaintiff had enjoyed good health apart from his injuries and the consequences thereof. He appeared to the Judge from his background to be a responsible and reasonable individual. The court making a nominal allowance for the possibility of yet further promotion for which the court had had not allowed, held that the provision for contingencies should not exceed 10% and made its assessment on the basis of a 10% deduction. [52] In the present case the plaintiff s position, apart from a slight difference in age, appears to be closely comparable to that of the plaintiff in the Goodall case. There is no evidence of any adverse health issues that the plaintiff suffered from before the accident. There can be no doubt from the evidence on record that the plaintiff is a responsible family man and a generally reasonable individual. His employer opined as much according to Dr Piro. At 49 years of age the plaintiff s loss of income or earning capacity does not stretch over the plaintiff whole working life but for a relatively short period, which is roughly sixteen years at the assumed retirement

18 18 age of 65. I am in agreement with Mr Frost s submissions that nearly two thirds of the plaintiff s working life has already passed and, as such, the contingencies have to be calculated over a relatively short period. [53] As already indicated, Ms Watt, counsel for the defendant, has submitted that a proper contingency deduction in this case should be 30%. The only basis upon which the submission appears be premised is that in terms of the plaintiff s employer s policy retirement age is 60. However, upon enquiry by the court during her argument she could not furnish any basis for rejecting the plaintiff s evidence that despite such policy some Code 14 drivers in the company were employed beyond that age and there was one that was currently employed despite the fact that he was over the age of 63 years. She also could not furnish any basis for the rejection of the plaintiff s evidence that even if his company could not retain him beyond the 60 year retirement age he could easily have secured employment from other companies up to and beyond age 65. She concluded on this point by submitting that her instructions were to argue for a 30% contingency deduction. When she was requested by the court to substantiate the basis for such deduction she could not take the matter any further. [54] Having carefully considered the evidence before me, as well as the submissions by counsel both in their heads of argument and orally in court, I am persuaded by the submissions made on behalf of the plaintiff that there would be no basis for awarding any contingency deductions that would exceed 10% with regard to the plaintiff s future loss of earnings or earning capacity. I am of the view that in the circumstances of this case it would be fair to both parties that the plaintiff should be compensated for his future loss of income or earning capacity in the sum of R ,00, which should be reduced by 10%, resulting in an award of R ,00 in respect of his claim for future loss of income or earning capacity.

19 19 [55] In the result I make the following order: (1) The Defendant is held liable to the Plaintiff for the sum of R ,27 (R150769,09-20%) in full and final payment of the Plaintiff s past hospital and medical expenses; (2) The Defendant is held liable to the Plaintiff for the sum of R33 516,00 (R %) in full and final payment of the Plaintiff s past loss of income; (3) The Defendant is held liable to the Plaintiff for the sum of R (R %) in full and final payment of the Plaintiff s future loss of income; (4) The Defendant is held liable to the Plaintiff for the sum of R (R %) in full and final payment of the Plaintiff s general damages; (5) The above amounts totalling R is to be reduced by R in respect of the Workman s Compensation Commissions award and that the Defendant is ordered to pay to the Plaintiff the sum of R in full and final settlement of his damages; (6) Payment of the aforesaid amount in paragraph 5 above shall be made within 14 days from date of this Order directly to the Plaintiff s attorney of record, Struwig Hattingh Attorneys trust account; (7) Failing payment of the aforesaid amount in sub-paragraph 5 above the Defendant is to pay interest on the aforesaid amount at the rate of 15,5% per annum from a date 14 days after date of this Order to date of payment; (8) The Defendant shall furnish the Plaintiff with an Undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act, Act 56 of 1996, limited to 80% of the costs of future accommodation of the Plaintiff in a hospital or nursing home, or treatment of or rendering of a service to him or supply of

20 20 goods to him arising out of the injuries sustained by him in the collision on 5 April 2005, after such costs been incurred and upon proof thereof. (9) The Defendant is to pay the Plaintiff s cost of suit as taxed or agreed, such costs are to include: 9.1 The costs of the reports and supplementary reports, if any of : Dr W Wickens; Dr D Solomons; Dr P J Matley; Mrs L Strauss; Dr K Piro; Munro Consulting Actuaries. (10) The reasonable qualifying, expenses and reservation fees, if any, of: 10.1 Dr W Wickens; 10.2 Dr D Solomons; 10.3 Dr P J Matley; 10.4 Mrs L Strauss; 10.5 Dr K Piro; 10.6 Munro Consulting Actuaries. (11) The costs of preparing and drafting the Plaintiff s Heads of Argument. (12) The Defendant is to pay interest on the Plaintiff s taxed or agreed costs of suit at the rate of 15.5% per annum from a date 14 days after allocatur or agreement to date of payment.

21 21 P H S ZILWA ACTING JUDGE OF THE HIGH COURT APPEARANCES FOR THE PLAINTIFF : ADV FROST INSTRUCTED BY : MESSRS NETTLETONS ATTORNEYS 118A HIGH STREET GRAHAMSTOWN FOR THE DEFENDANT: Ms WATT INSTRUCTED BY : N N DULLABH & CO 5 Betram Street GRHAMSTOWN