REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO:   10/22147

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

COOK, JOHANNA CHRISTINA					               Plaintiff 

and

ROAD ACCIDENT FUND						          Defendant
______________________________________________________________ 

J U D G M E N T
______________________________________________________________ 

KGOMO, J:

INTRODUCTION

[1] 	The plaintiff has instituted an action against the defendant for damages arising out of injuries she sustained during a motor vehicle collision that occurred on 11 August 2006 at approximately 18h25 at or near Main Road, at Kocksoord, Randfontein.  The collision occurred between the motor vehicle which was driven by her husband and in which she was a passenger, namely vehicle with registration numbers NRB 46270, when it was hit from behind be motor vehicle with registration numbers RLB 889 GP (“insured vehicle”) there and then driven by one Mr Terreblanche (“insured driver”).

[2] 	The defendant defended the action.

[3] 	At the inception of the trial the parties recorded the following agreement between them:

3.1	The issue of liability has been settled between them.  The defendant admitted to being 100% liable for the damages that should be proven by the plaintiff;

3.2	In respect of the heads of damages the following has been settled and thus put out of dispute;

3.2.1 	Past hospital and medical expenses = R7 029,98;

3.2.2	Future medical expenses = The defendant will issue the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“RAF Act”);

3.2.3	The plaintiff abandoned her claim for past loss of earnings; and

3.2.4	General damages were agreed at the sum of R150 000,00.

[4] 	What remained to be decided by this Court is whether the plaintiff suffered any loss of earnings, and if so, at how much such loss is computed. However, the parties were agreed that the plaintiff would have to be released from her employ to seek medical treatment or follow-ups for a total period of five (5) weeks.

[5]	 The plaintiff’s case on the loss of earnings was that her injuries are such that she would not remain in her employment up to the ordinary retirement age of 65.  That she on all probabilities would have to retire at the age of 62-63 years old.

[6] 	The plaintiff contended and submitted further that should this Court find that the evidence the plaintiff could lead does not prove the above, that the court should find that her retirement package would be detrimentally affected when she in any case would leave before her normal retirement age, which aspect should be compensated by an appropriate contingency differential.

[7] 	The plaintiff is an employee of Uthungulu Municipality at Richards Bay, KwaZulu-Natal.  It is common cause and this Court can take judicial notice of the fact that civil servants which include employees of municipalities are obliged by law to retire at the age of 60 irrespective of their sex.

INJURIES SUSTAINED BY PLAINTIFFI

[8] 	The parties are also agreed that the plaintiff suffered the following injuries in the collision:

8.1	Whiplash type injury of the neck;

8.2	Soft tissue injury to the left shoulder; and

8.3	Soft tissue injury of the lower back.

JOINT MINUTE OF ORTHOPAEDIC SURGEONS

[9] 	The plaintiff’s orthopaedic surgeon Dr G O Read, who examined the plaintiff on 23 January 2008 and 16 July 2012 and the defendant’s orthopaedic surgeon Dr G J H Swartz, who examined her on 19 July 2012 issued a joint minute in which they agreed that:

9.1	Her injuries were a soft tissue injury to her cervical spine, a soft tissue injury to her right shoulder and a soft tissue injury to her lumber sine;

9.2	Her complaints were similar to each orthopaedic surgeon;

9.3	The principles of treatment by each orthopaedic surgeon were noted to be similar;

9.4	Both noted that the plaintiff would require conservative treatment for the symptoms coming from her axial skeleton;

9.5	Both believe that she is some risk requiring surgery to her axial skeleton;

9.6	Dr Read believes that she also has an impingement syndrome of her right shoulder and that she required an arthroscopy;

9.7	Regarding the plaintiff’s employment:

9.7.1	Both experts acknowledged that the plaintiff worked as an accountant and that her work is mostly sedentary;

9.7.2	Plaintiff complained to both experts about a loss of productivity on her part as a result of her injuries, which Dr Read estimated at approximately one hour per day or 10%;

9.7.3	Both agreed that she would require about five (5) weeks off work in order to attend to her treatment; and

9.7.4	Both experts agreed that they deferred to the opinion of an occupational therapist as to what the abovementioned loss of productivity is likely to mean in the future in terms of her income or income potential.

EVIDENCE BY PLAINTIFF

[10] 	The plaintiff led evidence through four witnesses, namely, the plaintiff herself; Dr Read, Riaan du Toit (occupational therapist) and Michel Hough (industrial psychologist).

Johanna Christina Cook (the plaintiff)

[11] 	She testified that she was 50 years old and employed as an accountant at the Uthungulu District Municipality at Richards Bay, KwaZulu-Natal.  She confirmed her injuries and the date on which she sustained them.

[12] 	She has a diploma in Financial Accounting and her work schedule in the Salaries Section of the District Municipality at the time of the accident entailed sitting at her desk writing or working on the computer as well as travelling twice or thrice a month to the satellite office of the district municipality to do spot-checks, training or general supervisory work.  Those district satellite offices, which mostly comprise local municipalities scattered around the Northen coastal areas of KwaZulu-Natal.

[13] 	Immediately after the collision she was shocked or numb and thus could not immediately feel any pain, but when she was still at Robinson Hospital in Randfontein, she started feeling the pain and the numbing feeling in her limbs, especially the right side ones. She was detained overnight at the hospital and released the following day to continue with out-patient treatment.  As a result of her injuries, she constantly takes pain killing pills each night after work. She stated that she could not take them during the day as their (pills’) narcotic effect induces drowsiness and it would be dangerous as she does a lot of driving.

[14] 	After the accident she was booked off sick for a period but she did not suffer any loss of income as she was paid while on leave. The only loss she could have sustained was the loss of vacation leave days as she was not allowed to take sick leave whenever she went for follow-up treatment or consultation with doctors and experts.

[15] 	It is common cause that at the end of any civil servant’s life on duty, i.e. when he/she retires, the accumulated vacation leave days would be converted into a cash award.

[16] 	The plaintiff is still employed at the Richards Bay district municipality, however, due to the fact that her injuries were exacerbated by the heavier workload in the Salary Section, she has been shifted to the Revenue Section with the retention of all benefits.

[17] 	She stated that at the time of her accident she earned around R16 000,00. She was not sure of the exact amount. Six (6) years down the line in 2012 she earns around R22 000,00.

[18] 	Further, according to her, she is forced to drive on rough or bumpy rural roads when she visits the satellite offices and this exacerbates her pain. She is forced to stop at regular intervals at service stations to stretch her sore and painful limbs, something she did not do before the accident.

[19] 	She has already undergone an operation to her right should in April 2012 to ease the pain there, however, she has not experienced a lessening of the pain. Bone splinters were allegedly removed from her joint(s) in that operation.

[20] 	Cross-examination did not reveal much that is new save for information that she has an option of retiring at age 55 if she so wanted. However, because of the fact that her salary would be lower than what it would have been at age 60 or 65, she stands to lose out if she elects to do so.

[21] 	She explained that the salary at the time of retirement is used to calculate what pension benefits or interests she would be entitled to. She further explained that it would be self-defeating to retire at 55 years old because her husband is already on retirement and her salary is absolutely necessary to augment the husband’s pension. More so, she is still maintaining her aged parents from her earnings.

DR JEFFREY READ – OCCUPATIONAL SURGEON AND THE OTHER TWO EXPERTS

[22] 	Dr Read is the orthopaedic surgeon who examined and assessed the plaintiff. In a nutshell his testimony was that the type of injuries the plaintiff sustained will definitely result in loss of earnings and earning capacity.  This was also corroborated by the occupational therapist, Riaan du Toit and the industrial psychologist, Michel Hough.

[23] 	After the plaintiff’s case was closed, the defendant closed its case also without calling any witness to testify or handing in any expert report compiled on its behalf.

LOSS OF EARNINGS

[24] 	As stated above, both parties are agreed that the defendant should compensate the plaintiff for the five (5) weeks that the latter is likely to take time off from work to attend to medical treatment.
[25] 	The question to be answered here is:  Is there a loss of earnings in the future?  If the answer is no, then the matter will end there.  If the answer is yes, the next question should be:  How should this loss be quantified?

[26] 	The plaintiff’s evidence has already been set out hereinbefore.  The question is whether or not the three experts who testified on behalf of the plaintiff substantiated the latter’s contention.

[27] 	According to Dr Read at first when he examined the plaintiff for the first time on 23 January 2008 his opinion was that the only injuries on the plaintiff which displayed neurological symptoms were those of the neck. However, when he saw her again on 16 July 2012, he discovered that even the back injury had deteriorated and was also showing neurological symptoms.  These injuries may require surgery in future. In addition to the above, the shoulder injury may require conservative treatment or even more surgery. The plaintiff has already been operated on her shoulder to alleviate pain but that has not helped at all.

[28] 	The single most exacerbating factor was the plaintiff’s employment as an accountant of a district municipality that over-arches six smaller local municipalities or satellite office. She is obliged to visit the satellite offices regularly, as she put it, two to three times a month. She is travelling around 1500 to 2000 km monthly on gravel or bumpy rural roads which aggravates her injuries and/or increase the pain.

[29] 	It is so that the plaintiff’s employers at the moment still value her contribution at work and have even accommodated her diminished work capacity by moving her from the Salary Section where there is more sedentary work requiring a lot of writing and computer work to the Revenue Section without any loss of salary or benefits.  However, as the plaintiff’s experts opined, this is for now. If and when her injuries deteriorate, as they stated they will, the possibility exists that they may not be as accommodating. That is speculation, however issues such as these are determined by among others looking into the so-called “crystal ball” and attempt to predict or foresee what can be.

[30] 	Her changed physical condition is borne out by her uncontradicted evidence that of late, i.e. post-accident, whenever she goes visiting the satellite offices she uses a route that allows her to be able to stop and rest at filling or service stations along the way.

[31] 	Although she is presently receiving her salary or emoluments and annual increases normally, the possibility looms large that she may with time lose her travelling allowance once she is found by her employers no longer fit or capable to perform her supervisory duties due to diminished capacity to drive.  There is also evidence that her monthly earnings were augmented by regular overtime pay and her capacity to do it with similar intensity has been substantially reduced by her injuries.  The fact also that her injuries as soft tissue ones and not on bones compounds her situation. Uncontradicted expert evidence is that soft tissue evidence does not heal easily like bone injuries.
[32] 	In the absence of evidence to the contrary from the defendant it is my considered view and finding that the evidence tendered by the plaintiff indeed proves that she will lose income or capacity to earn income at some stage in the future.  The only question is at what stage and the extent thereof.

[33] 	Acting against the plaintiff is the issue of natural attrition, i.e. normal and/or progressive ageing.  It is common cause that with age, a person’s capacity to do certain things is reduced or reduces as time takes its toll on the body. This in my view should be addressed by a necessary contingency deduction.

[34] 	Furthermore, the plaintiff also did not start the absolutely necessary supplementary procedures like physiotherapy timeously.  She only started them recently. For a period of four years after the accident she did not do so.  It is her experts’ opinion also that such supplementary procedures which follow the initial medical and/or surgical procedures post-accident substantially reduces the negative sequelae of an accident and that timeous starting therewith would or could have improved the plaintiff’s chances of enjoying a better life until her retirement.  This failure should affect the quantum of damages that she should be entitled to.

[35] 	Dr Read’s opinion is also that the possibility of the plaintiff having to undergo a shoulder replacement looms large more so that surgery to ease the pain in the shoulder has not lessened the pain the plaintiff is presently experiencing. There is evidence to the effect that even after that operation, instead of the pain decreasing, it has instead increased. Her right shoulder is “frozen” in the sense that according to Dr Read, it is unstable.  She is a right sided person, meaning that her right limbs are the dominant limbs that does all the hard work when she writes, huddles over a computer and drives a motor vehicle.  According to the orthopaedic surgeon, this account for his tiredness and pain when doing all the above, pointing to the possibility of her not working up to her normal retirement age. The expert explained that the shoulder socket is shallower than the hip one, with the result that the tissues ultimately struggle to keep it in its proper position, thereby weakening them (tissues) to a point where an operation becomes essential.

[36] 	There is also uncontradicted evidence by the expert that the plaintiff is losing 10% of the time she needed to complete her tasks daily, which is equivalent to working an extra one hour daily to complete the tasks she used to complete in normal work time.  As such, she will invariably lose the time she used to earn overtime in.

EARLY RETIREMENT

[37] 	All the three experts who testified on behalf of the plaintiff are agreed that the plaintiff will not work until the retirement age of 65 years. I raised an informal query about a civil servant’s retirement age being 65 in the light of communications that were in the public domain in the recent past where there was “hulla-ba-loo” concerning the disparity in the retirement ages of men and women in the public service.
[38] 	I have once been in public service for 24 years and am aware that the retirement age of males in the public service was 65 years whereas that of women was 60 years. I am also aware of the fact that the pension laws and regulations were changed to progressively bring down the retirement of males down until it was the same as that of females, i.e. 60 years. This was done by reducing it in the first year to 63 years and the year thereafter to 60.  To my knowledge the retirement age of men and women in the public service presently is 60 years.  Municipal employees are also public servants.  However there is no evidence in this trial as to whether they are governed by different pension rules or not. The plaintiff’s occupational therapist testified to the effect that the Municipal Manager of Uthungulu District Municipality sent her a document in which it was stated that the plaintiff’s and other municipal employees’ retirement age(s) is 65 years.  Unfortunately, she did not have that document on or with her when she testified and thus this aspect could not be verified.

[39] 	What is material in this trial is that the plaintiff’s and defendant’s experts were all agreed that the normal retirement age of the plaintiff was 65 years.

[40] 	Both the plaintiff’s orthopaedic surgeon and occupational therapists were agreed that the plaintiff would not work up to the normal retirement age of 65 years.  The orthopaedic surgeon opined that she would most probably have to retire at age 62 or 63.  The occupational therapist opined that she may have to retire at the age of 58.  Counsel for the defendant disputed this. Unfortunately he was hamstrung by the fact that the defendant’s experts also were of the opinion that that would or may occur. I say so due to the fact that their opinions trying to negate this aspect were very half-hearted and unconvincing.

[41] 	After perusing the plaintiff’s experts’ reports which they based their viva voce evidence on, I am persuaded that they have made out a case of the plaintiff retiring early, be it at age 58 or 62 or 63. The absence of testimony to the contrary from the defendant’s experts leaves this Court with no option but to accept the evidence from the experts who testified, who are those of the plaintiff.

[42] 	The basis of their opinions is the same as what has already been set out hereinbefore.  According to Riaan du Toit, the occupational therapist, the plaintiff is currently a “compromised” employee whose work responsibilities contribute to this already compromised condition. In his opinion, the above exacerbates the impact of her injuries and their neurological effects or sequelae on the plaintiff. As a consequence, as he testified he found upon examining the plaintiff, the latter’s work speed, accuracy and endurance have decreased.  He thus also concluded by opining that the plaintiff has already reached her maximum medical improvement (“MMI”).  Only serious medical intervention may make her situation better.

[43] 	The above is counter-balanced by the fact that the plaintiff has already reached the end of her salary scale at her employment which can only change for the better if she applies for and is found appointable into a different but higher position with its own salary structure.  Evidence has it that no such position has as yet become available.

[44] 	After considering all the evidence led herein, it is my finding that there is no justification for disputing the plaintiff’s evidence that normal retirement age at her workplace is 65 years and that she will be forced to take early retirement at age 63. 

[45] 	The industrial psychologist’s opinion is that the plaintiff will definitely suffer loss of income in the future. Her opinion also in my view points to that cut off date being when the plaintiff is 63 years old.

[46] 	The aspects I mentioned above as being counter-balances to a straight loss of income without any contributory factors emanating from the plaintiff, for e.g. natural ageing, her failure to start supplementary treatment timeously and the fact that the plaintiff has already reached the ceiling of her salary scale are in my view supportive of the conclusion I have reached.

[47] 	The aspect of her getting a higher post is too uncertain.  A loss of earnings calculation with contingencies taken into account is in my further view also so unreliable as to render it not the correct mode of calculation of loss of earnings in this case. As such I will not embark on an evaluation of and the relevance of contingencies herein.

[48] 	In his closing argument and heads of argument, counsel for the defendant asked for this Court to dismiss the applicant’s claim for loss of income or earning capacity merely on the basis that the retirement age is uncertain and that the plaintiff’s expert relied on a document (by Municipal Manager) without producing such a document.  The defendant indeed has a point in that the tendered section 17 undertaking by the defendant for the plaintiff’s future treatment adequately caters for the treatment that the latter may require, which, if properly done and followed, may lead to her working until her retirement age of 65.  However, as already found above, the most probable age at which the plaintiff may retire is at 63 years old. In addition thereto, the plaintiff’s late or belated start with the important rehabilitative treatment should negatively affect the quantum the plaintiff may have deserved. Nevertheless, all the above does not take away the proven fact that the plaintiff will lose earnings or earning capacity later in life as a result of this accident.

[49] 	On behalf of the defendant a greater reliance was had on the fact that the plaintiff had reached the ceiling of her salary scale and the uncertainty of the possibility of her having to retire early was also given prominence.  In the most, it was submitted on the defendant’s behalf that the plaintiff in fact did not or could not be expected to suffer any loss of earnings in the future.

[50] 	The above scenario in my view does not take into account the other aspects which, apart from the straight salary the plaintiff used to earn, the other reimbursing allowances, overtimes and travelling allowance that form part of the total remuneration package.  The gradually deteriorating state of the plaintiff’s health since the accident in my view was also not factored in.

[51] 	It was also submitted on behalf of the defendant that the plaintiff neglected or failed to mitigate the damages she might suffer by not undergoing rehabilitative processes timeously.  That may be so. However that can be compensated by a contingency deduction, if need be.

[52] 	The defendant argued that as at this time of the trial, the plaintiff is still earning the same salary she is entitled to and that on all probabilities, she will do so until she retires at the right time for retirement.

[53] 	In my view, the above contention by the defendant presupposes a situation where the accident had not occurred and the absence of the injuries, with their sequelae, as demonstrated and sketched in this Court by the plaintiff’s experts.  If I was allowed to speculate, I would say that had the defendant’s experts also testified and explained what or where they differ with the plaintiff’s experts, maybe the defendant’s counsel would have had a point.  Unfortunately there is no such evidence before this Court. As such such submissions will remain conjecture and speculation.

[54] 	Counsel for the defendant’s argument and submissions were based on a group of decided cases that were handed in into the record during closing argument, wherein the courts found that the plaintiffs therein did not prove loss of earnings.  They are Ngwenya v RAF (unreported) and handed down in this Court on 7 August 2012; Alanta Angelique Prinsloo v RAF (unreported Eastern Cape decision) under Case Number 139/2009 delivered by Jones J on 14 February 2010; and Deysel Riana v RAF (unreported judgment of this Court delivered by Bizos AJ) under Case Number 2483/09 on 24 June 2011. 

[55] 	These cases in which it was ruled that the plaintiffs may have had reduced prospects on their earning capacities were based on an alleged fallacy which Mogagabe AJ put as follows in the Ngwenya case (supra):

“33. 	… it assumes that the plaintiff has suffered loss of earning capacity merely because the injuries he sustained and the sequelae thereof negatively impacted on his ability to discharge the duties of a petrol attendant and as such he should be compensated for ‘a career that has been cut short’ assuming this refers to loss of earning capacity. This is incorrect in law. The fact that a claimant has suffered a disability or impairment of earning capacity in consequence of the injury sustained does not ipso facto imply that he has suffered pecuniary or patrimonial loss. In other words this is not the end of the enquiry. There must be proof that the diminution or reduction in earning capacity has indeed resulted in pecuniary or patrimonial loss.  In other words, has the impairment translated into actual patrimonial loss?  This is the ratio of the long line of authorities cited above including the unreported case of Riana Deyzel v RAF …”

[56] 	The Riana Deyzel case is an unreported judgment of Bizos AJ under Case Number 2483/09 delivered on 24 June 2011. 
[57] 	The problem with the above interpretation is that in cases such as the one we are dealing with, it is difficult if not well-nigh impossible at this stage to determine what the injuries the plaintiff has sustained would cause in actual losses of earnings.  That determination can only be made in the future.  If the above reasoning is followed, it would mean no injured person may be successful with a claim of loss of earnings or earning capacity at the time such loss has not been computed.  This in my view would be an absurd situation which would be at variance with what the law intended when the Road Accident Fund Act (or its predecessor) was (were) promulgated.

[58] 	It is a canon of our law that the law does not aim at bringing about absurdities.

[59] 	The fact that various specialists or experts take the time to look into the claimant’s situation and then look or project into the future what the probable consequences of the injuries such a claimant has sustained in my view presupposes that despite no actual damages not having been computed, there is no bar to the courts awarding damages based on those projections or forecasts.

[60] 	It is my finding therefore that the plaintiff has proved that she should be awarded damages for future diminution in her earnings or earning capacity.

ACTUARIAL CALCULATIONS

[61] 	The plaintiff’s actuaries, Messrs GRS Actuarial Consulting compiled an updated calculation on 13 September 2012 which took into account the situation as it obtained after the leading of evidence had ended. This Court is indebted to them for the splendid work they did.  After perusing their report I am convinced that they are on top of their work as well as being honest people.  That is discernible from the manner in which they dealt with the facts and data given to them.

[62] 	They sketched out four scenarios or bases based on the retirement age of 63, 62 and 58 respectively.  I checked the bases of their calculations as well as the assumptions of the calculations. I am satisfied that they took into account all facts and factors that need to be taken into account in such circumstances.

[63] 	The income (if accident did not occur) is R4 251 469,00.  In Basis 1 (age 63) the income (given the accident had not occurred) is R3 775 640,00. The difference representing loss of income is R475 829,00.

[64] 	In Basis 2 (age 62) the income (given the accident had not occurred) is R3 540 039,00. The loss of income is R711 430,00.

[65] 	In Basis 3 (58 years) the income (given the accident did not occur) is R2 591 081,00. The loss of earnings is R1 660 388,00.
[66] 	In Basis 4, in the event of a situation where contingencies were to be factored in, that is, where there is no early retirement but a 20% contingency differential was applied, assuming the plaintiff retired in the year 2020, the scenario would have been the following:

	Income if accident did not occur		=	R4 251 469,00
	Less contingency deduction of 20%	=	R   425 147,00
		Difference				=	R3 826 322,00
	Income given accident did occur		=	R4 223 496,00
	Less contingency deduction		=	R1 267 049,00
		Difference				=	R2 956 447,00
	Resultant loss of income			=	R   869 875,00

CONCLUSION

[67] 	The general principle applicable in cases relating to loss of earnings and/or earning capacity was articulated in several topical cases, among them, Santam Versekeringsmaatskappy Beperk v Byleveldt 1973 (2) SA 146 (A) at 150B-D and Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917B-D.  The principles set out in the above cases were crisply encapsulated by Chetty J in Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) as follows:

“A person's all-round capacity to earn money consists, inter alia, of an individual's talents, skill, including his/her present position and plans for  the future, and, of course, external factors over which a person has no control, for instance, in casu, considerations of equity. A court has to construct and compare two hypothetical models of the plaintiff's earnings after the date on which he/she sustained the injury. In casu, the court must calculate, on the one hand, the total present monetary value of all  that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and, on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of the patrimonial loss. … At the same time the evidence may establish that an injury may in fact have no appreciable effect on earning capacity, in which event the damage under this head would be nil.”

[68] 	In our case, the evidence negates a finding that the plaintiff’s injuries will have no appreciable effect on her earnings or earning capacity.

[69] 	The loss or diminution of earning capacity must in actual fact translate into pecuniary or patrimonial loss. Where a claimant’s earning capacity has been impaired or compromised, such incapacity constitutes a loss.  If such loss diminishes the claimant’s patrimony, the latter is entitled to be compensated to the extent that his or her patrimony has been so diminished.

See:	Unreported judgment of Mogagabe AJ in Ngwenya Jabulani Patrick v RAF delivered on 7 August 2012 under Case Number 16196/08.

President  Insurance Co Ltd v Matthews 1992 (1) SA 1 (A) at 5C-A.

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) at para [11].
[70] 	It is my finding that the plaintiff herein has discharged that onus to the extent represented by the award hereunder.

[71] 	In addition to the heads of damages already agreed upon between the parties as set out hereinbefore, it is my finding that the plaintiff is entitled to be compensated to the tune of R475 829,00 in respect of the loss of earnings heads of damages.

LIABILITY AND AMOUNTS PROVEN AND AGREED UPON

[72] 	At the end of the day, the following has been agreed upon or proven:

72.1	The defendant is held liable for 100% of the damages the plaintiff suffered as a result of the injuries she sustained in a motor vehicle accident or collision that occurred on 11 August 2006 at or near Main Road, Kocksoord, Randfontein;

72.2	The defendant is to compensate the plaintiff as follows in respect of the heads of damages in issue:

72.2.1 	Past hospital and medical 
expenses				R   7 029,98

		72.2.2 	General damages			R150 000,00

72.2.3	Future loss of earnings
due to loss of earning 
capacity 				R475 829,00	

72.2.4	Future hospital and			The defendant is
medical expenses			to furnish the 
					plaintiff with an
					undertaking in
terms of section
17(4)(a) of the
Road Accident
Fund Act 56 of
1996.

ORDER

[73] 	The following order is made:

73.1	The defendant shall pay to the plaintiff an amount of R632 858,00 in delictual damages in consequence of bodily injuries sustained by the plaintiff in a motor vehicle collision that occurred on 11 August 2006;

73.2	The defendant shall pay interest on the aforesaid sum at the rate of 15,5% per annum as from 14 days after the date of judgment to date of final payment;

73.3	The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, in respect of the costs of her future accommodation at a hospital or nursing home, or for treatment of, or rendering of services or supplying of goods to her after such costs have been incurred and on proof thereof, arising from the injuries sustained by her in a motor vehicle collision on 11 August 2006;

73.4	The defendant shall pay the plaintiff’s costs of suit, such costs to include:

73.4.1 	The costs in respect of the obtaining of the medico-legal reports of the following experts:

•	Dr Read;
•	Adri Roos;
•	Ben Moodie;
•	Riaan du Toit;
•	Johan Sauer; and
•	GRS Actuarial Consulting Actuaries;

73.4.2 	The qualifying and attendance fees and preparation costs in respect of the following expert witnesses:

•	Dr Read;
•	Riaan du Toit; and
•	Ben Moodie;

73.4.3 	The costs attendant upon the obtaining of the payment of the capital sum awarded;

73.5	The plaintiff is declared to be a necessary witness.

73.6	The defendant shall pay interest on the aforesaid costs of suit at the rate of 15,5% per annum from the date of the taxing master’s allocatur, or the date upon which the costs are agreed, to date of payment.

            _____________________________
		      N F KGOMO
	JUDGE OF THE SOUTH GAUTENG
	  HIGH COURT, JOHANNESBURG

FOR THE PLAINTIFF				MR MARTIN COETZER

INSTRUCTED BY				WIM KRYNAUW ATTORNEYS
						MARBLE TOWERS, JOHANNESBURG
TEL NO:  011 – 333 7782

FOR THE DEFENDANT			ADV N RALI RALIKHUVHANA
INSTRUCTED BY				KUNENE RAMAPALA BOTHA
						c/o REGUS, PARKTOWN
						JOHANNESBURG
						TEL NO:  011 – 955 5454

DATE OF HEARING			13 SEPTEMBER 2012 

DATE OF JUDGMENT			 10 OCTOBER 2012