Coetzee v Road Accident Fund (12999/17) [2020] ZAGPPHC 456 (24 July 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 12999/17

In the matter between:

LOUIS JOHANNES COETZEE

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

J U D G M E N T

TEFFO, J:

[1] The plaintiff instituted an action against the defendant for damages suffered as a result of bodily injuries he sustained in a motor

vehicle accident on 2 May 2016.

[2] The issues of liability, future medical and hospital expenses, and past loss of income have been resolved. The defendant is liable to pay 50% of the plaintiff’s proven or agreed damages. The defendant shall provide the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“the Act”), limited to 50%. The defendant is liable to pay the plaintiff the amount of R16 790,00 in respect of three months’ past loss of income.

[3] The following issues have been postponed for later determination: (a) the plaintiff’s past hospital and medical expenses; (b) the plaintiff’s claim for general damages which has been rejected by the defendant and therefore referred to the Health Professions Council of South Africa (“HPCSA”).

[4] The issues that were in dispute and proceeded with on trial are the following: The question whether the accident related injuries and their sequelae resulted in the plaintiff having to retire early; and, the costs of caregiving for the plaintiff from the date of the accident until the date of trial.

The injuries

[5] The plaintiff sustained the following injuries:

(a) A mild to moderate concussive brain injury with a focal brain injury and secondary brain damage;

(b) Fractures of the fifth to eight ribs on the left-hand side;

(c) A closed supra condylar fracture to his right femur;

(d) An open wound to his left knee;

(e) A fracture to the proximal phalanx of his fifth finger;

(f) His anterior abdominal wall was bruised;

(g) His stay in ICU was complicated by an electrolyte disturbance (hypernatremia); renal failure, paralytic ileus, ICU derilium and

systematic infection.

The evidence

[6] The plaintiff testified in support of his case and also called five witnesses. The defendant closed its case without calling any

witnesses.

[7] Mr Jan Gerhardus Lodewicus Booysen testified that he is the Chief Executive Officer of Blitz Medical Couriers where the plaintiff was employed as a driver at the time of the accident. He could not tell the date when the plaintiff started working at Blitz Medical

Couriers. The plaintiff turned 65 years old in January 2016 prior to the accident. He was an above average and very descriptive employee. He was offered a temporary contract after retirement.

[8] The plaintiff’s position would have been renewed in June 2016. The renewal thereof would have continued until the age of 68 years. At Blitz Medical Couriers there are other employees who have worked beyond the age of 65. When they turn 65 years, their positions are renewed and they are offered temporary contracts. A certain Mr Labuschagne worked for Blitz Medical Couriers until he reached the age of 68.

[9] Under cross-examination he reiterated that the age of retirement at Blitz Medical Couriers is 65 years.

[10] Ms Carole Pretorius testified that she is an occupational therapist. Her qualifications were placed on record. She assessed the plaintiff on 7 September 2017 in order to evaluate his present occupational performance (physical, psycho-cognitive and functional) and also describe the impact of his impairments on his daily life and ability to comply with occupational demands. She perused the following documents: The RAF 1 claim form together with the statutory medical report, Netcare Akasia Hospital records, clinical notes of Dr Louise Engelbrecht & Partners, medical certificate of Dr Drews (15/11/16), medico-legal reports of Dr P Engelbrecht (orthopaedic surgeon) dated 13 January 2017, Dr J J du Plessis (neurosurgeon) dated 14 June 2017, Dr Dorelle Kirsten (pulmonologist) dated 10 August 2017, Dr K Truter (clinical psychologist) dated 29 May 2017. She compiled a report which was placed on record and she confirmed its contents.

[11] She interviewed the plaintiff and his wife and Mr Booysen (the plaintiff’s previous work manager).

[12] The plaintiff’s work history was given as follows: he worked at the Post Office as a clerk for 4½ years. He worked at the Fire Department as a fireman for 18 months. He was again employed at the Post Office as a clerk for another ± 4½ years. He worked at Highveld Steel as a loading officer and senior loading officer for six years. He was employed again at the Post Office as an investigating officer for 18 years and then took a severance package in 2002. He then joined Blitz Medical Couriers as a driver where he worked for 12 years up to the date of accident in 2016.

[13] It was reported to her that the plaintiff did not return to work after the accident. He receives a SASSA grant.

[14] She noted the plaintiff’s injuries and the sequelae thereof as mentioned in the different experts’ medico-legal reports. It was reported to her that the plaintiff developed complications in ICU and had a right leg shortening of 1.1 cm and early osteoarthritic changes in the right knee. He had pain in his right knee, leg and hand. He also sustained a mild to moderate concussive brain injury as a result of the accident. Psychologically he was diagnosed with an organic brain disorder with depression. He has an impaired decreased lung function. He had pre- existing co-morbid conditions. He suffers from hypertension, received a pace-maker as a result of a cardiac problem. He has a lung disease called asbestosis and he received a lung surgery. He had a spinal surgery with fusions at C4 and C5 as well as L5 and S1 levels. He also had a right knee surgery prior to the accident.

[15] She conducted informal and formal tests e.g., looking at the plaintiff’s pain, evaluating it and measuring the plaintiff’s report of pain during the evaluation. She carried out the standardised capacity of his ability to sit, climb stairs and his hands, group strength and his co-ordination.

[16] She found pain in the plaintiff’s right knee which was activity related. The pain increased as the plaintiff was taking part in the activities. The plaintiff had problems with his posture and gait, and walking distances. He reported that he sometimes uses a crutch when he experiences pain. His right knee was swelling and had some stiffness. He could not fully bend his knee or take weight on it. He could not sit and climb on the stairs. His right hand (where a finger was broken) tested weaker. His hands’ co-ordination was not smooth. His endurance was decreased. He got tired easily.

[17] The plaintiff had problems with information processing. His attention to detail and error resistance was limited. His problem solving and planning was limited. He appeared limited inside and this would correspond with the traumatic brain injury, especially the frontal lobes.

[18] He was diagnosed with depression. On her testing and observations, she noticed that the plaintiff seemed to have impulsiveness. He told her that he cannot control his temper. This was confirmed by the plaintiff’s wife. He has decreased social interest.

[19] The plaintiff has a dysfunctional daily activity programme. He had decreased efficiency and autonomy with regard to daily self-

management tasks within the home and community. He requires a structured environment and assistance. He is not viewed as being able to live on his own/cope with the demands of independent community living. According to her, the plaintiff would benefit from

rehabilitation, referral to a support group, case management, special equipment; occasional hired help in the home. The plaintiff might require more regular assistance in the future should his condition deteriorate further or the normal effects of aging as he is already compromised/vulnerable.

[20] The plaintiff has a Grade 10 education. He did not return to work after the accident and remains unemployed to date. Her assessment of the plaintiff a year after the accident is that the plaintiff cannot meet the physical speed requirements of work that would fall from sedentary to light work. He is unsuited to his pre-accident work as a driver because of his cognitive impairments as well as his physical problems that could be anticipated for his job, e.g., sitting for a long time while driving, operating foot paddles of a car, lifting and carrying delivery boxes and working 12 hour shifts, etc.

[21] She concluded that the plaintiff is functioning below his pre-morbid vocational work. He is an unequal competitor in the open labour

market. He is significantly functionally impaired. He has long-term serious physical as well as mental impairment, with significant

functional losses. As a result, his prospects of entry into or advancement in employment, have been significantly curtailed. This,

coupled with his proximity to normal retirement age; as well as his lack of other qualifications or experience on which to fall back on, would make him an unequal competitor in the open labour market. He is functionally unemployable.

[22] After the accident, for 4-5 months, his family took care of him. He was in bed and used diapers. He needed to be washed and food was brought to him. His wife provided this attendance care and also did all the housework. Seven months prior to his evaluation, a domestic worker was employed, once a week. Ms Coetzee reported that she could not do all the chores. Costs were provided as being R600,00 per month.

[23] According to her, the assistance given was justified as the plaintiff would not have been able to carry out daily tasks without help. Should his wife not have been available, a caregiver would have needed to be employed for this period of time. According to her, past costs should be allowed as they are justified.

[24] Regarding the costs of the current domestic assistant, the plaintiff’s wife still needs to assist him in the home. A measure of domestic help would serve to relieve her burden of care to some extent and allowance for this assistance is recommended.

[25] The plaintiff is now more reliant on hired help than he would have been but for the accident. She recommended domestic assistance one day a week at Department of Labour minimum hourly rates of R14,54 for 2017. This would provide relief assistance to his wife, who is the main care attendant and is not able to manage all of her domestic responsibilities, as before.

[26] He used to do gardening pre-accident. He cannot do it anymore. She had allowed two days per month at area-related rates of between ± R180,00 to R200,00 per day. The amounts would be higher in 2019.

[27] She also allowed a post-accident recuperative period where Mrs Coetzee, the plaintiff’s wife looked after him equivalent to the costs of a full-time caregiver (R6 200,00 per month).

[28] Under cross-examination she testified that she is not a medical specialist. She cannot comment on the diagnosis of the plaintiff’s

illnesses outside her field. As an Occupational Therapist, she can comment that from the information received, the plaintiff was

functioning adequately at work and at home prior to the accident. He was able to do what was needed at the time. There was no indication

to her knowledge that his pre-existing conditions rendered him non-functional. He had a full-time job and was an independent member

of his family.

[29] Dr Jacques J du Plessis testified that he is a neurosurgeon. He assessed the plaintiff on 4 June 2017 and compiled a report. The report formed part of the bundle of documents on record and he confirmed its contents. He perused the following documents: (a) RAF 1 form dated 02/09/2016 completed by Dr L Engelbrecht; (b) clinical records from the Trauma Unit of Eugene Marais Hospital; (c) clinical records from Netcare Akasia Hospital, (d) medico-legal reports compiled by Dr P Engelbrecht dated 13/01/17 and (e) Dr J F Truter dated 29/05/17; and (f)the special investigations that were done on the day of the accident were available for review. According to the documentation provided, the plaintiff sustained a brain injury.

[30] He reported loss of consciousness could not recall events that took place on the scene of the accident. A GCS score of 15/15 was recorded on his arrival at the hospital but it was noted that he repeated the same questions. According to the radiologist’s report, significant cerebral oedema was noted in both frontal lobes of his brain.

[31] The radiologists noted signs of swelling on the frontal lobes of the brain. The brain scan was also available for review by him and he concurred with the radiologist’s findings.

[32] While the plaintiff was in ICU, he developed respiratory failure. He was put on a ventilator. This is important against the background of a brain injury because respiratory failure can affect the normal oxygen supply to the brain.

[33] The plaintiff sustained a mild to moderate concussive brain injury in the accident. Swelling of the frontal lobes of his brain was noted by the radiologist on the initial CT scan of his brain. He probably has a dysfunction of his frontal lobes in view of his reported short- temperedness, probable emotional liability and loss of self-confidence.

[34] There is a possibility that the plaintiff has a secondary brain damage. He had a difficult time when he was in ICU. He developed multi organ failure, ICU delirium and systematic sepsis. This can lead to permanent cognitive dysfunction.

[35] The plaintiff lost his job after the accident. This was as a result of a combination of the sequelae of his brain injury as well as his orthopaedic injuries. His opinion is that given the plaintiff’s age, level of education and the sequelae of his injuries, he has been rendered unemployable.

[36] The plaintiff enjoyed good physical health at the time of the accident. He had a cardiac condition which was well under control. He had a neck fusion many years ago which was successful. He had a minor surgery to his right knee in the 90’s which according to the plaintiff, was also a success and he was only taking medication for high blood pressure and cholesterol. He had a pacemaker for his heart in 2000. He had no heart symptoms, went cycling regularly, played cricket, went jogging short distances and played tennis. Based on his physical health which was still good, the fact that he was well motivated and had an incentive to continue working, his job was not physically strenuous. He would have been able to continue working for another five years had the accident not occurred.

[37] Under cross-examination he testified that according to the hospital records, the plaintiff was transferred to the ward on 29 May 2016. He was in ICU for 27 days after the date of accident. The plaintiff displayed a short memory when he examined him. He was adamant that as a GP he can give an opinion with regard to the plaintiff’s future physical ability to work.

[38] Dr Dorelle L Kirsten testified that he is a pulmonologist. His qualifications and expertise had been placed on record. He examined

the plaintiff on 4 August 2017 (one year and three months after the accident). He compiled a report and confirmed its contents. The plaintiff’s lung functions are severely restrictive. He currently becomes short of breath easily with even mild physical

exercise. The accident has aggravated the effects of his pre-accident pathology (asbestosis). It is justified that he could not return to his work at Blitz Couriers. According to him, the plaintiff could have continued working from a pulmonological viewpoint for a further 2 to 3 years, if the accident had not occurred.

[39] The plaintiff’s lung functions confirm an almost 45% loss of the forced vital capacity (FVC) before the administration of the bronchodilator. This means that at the time he examined the plaintiff, the plaintiff had more or less half of his lung that was functioning. He had bilateral rib fractures and a history of asbestosis which also create problems. Sixty percent due to the accident and 40% due to the previous asbestosis. The plaintiff has now lost almost half of his lung capacity as a result of the accident. In combination with his other injuries, this will prevent him from being employed in any capacity.

[40] Under cross-examination, he testified that he does not have any idea of the plaintiff’s lung capacity prior to the accident. It was never given to him.

[41] Dr Kobus Truter testified that he is a clinical psychologist. His qualifications and expertise were placed on record. He examined the plaintiff on 27 May 2017 and compiled a report. He confirmed the contents of the report. He conducted various tests on the plaintiff. His prognosis of the plaintiff after assessment was that he has an organic brain disorder with depression and injuries to the frontal lobes. His psychological and personality goes with mood fluctuations, the unpredictability of behaviour and memory issues. He was like a person not having the drive. He has neurocognitive and systematic injuries as well as psychological issues such as depression. He has orthopaedic injuries and sequelae as well as the brain injury. His wife had to adjust to the general changes.

[42] He recommended forty sessions of psychotherapy. He feels that his prognosis of the plaintiff is poor and it impacts on his general

functioning, his relationships in life as well as his employability. The plaintiff placed a high premium on employment. According to the Occupational Therapist, the plaintiff was diligent and hardworking. Suddenly he cannot provide for his family’s financial needs. He lost sense in life. He is no longer employable. He is now secondary to his wife. His wife has to look after him. He recommended

psychotherapy twice, mainly maintenance therapy just to contain the present function. Pre-morbid the plaintiff worked at the Post Office. According to the tests done, the plaintiff cannot do administrative work.

[43] Under cross-examination he testified that after assessing the plaintiff, he concluded that he has a structural brain damage which the experts referred to as edema. The plaintiff suffered from delirium, hallucinations, disorientation and restlessness. According to Dr Du Plessis, this can lead to permanent intellectual cognitive dysfunction of the brain. The plaintiff also has a combination of depression, brain damage and frontal lobe pathology and the prognosis is very poor. His orthopaedic status also functions poorly.

[44] Despite his age, the plaintiff was functioning well in his occupation. He aspired to work in that position. He was definitely more vulnerable for possible retrenchments. As Carole Pretorius, the Occupational Therapist, has indicated, the plaintiff could have continued to work on a contract basis. After the accident, this vulnerability increased significantly. The plaintiff would have continued working until he decided to retire.

[45] Ms Magrieta Magdalena Coetzee testified that she is the plaintiff’s wife and they have been married for 42 years. After his discharge from the hospital, the plaintiff stayed at home with her. She has been looking after him. He was not allowed to stand or sit. He wore nappies. She had to help him with everything. He could not bath or clean himself. She had to bath and clean him daily.

[46] Three days after the plaintiff was discharged from hospital, she had to employ someone to help her turn the plaintiff, prepare food and look after the house. Until the previous year, she had to assist the plaintiff in the toilet. The plaintiff could not wipe himself. She had to dry him when he showered as he could not dry himself. The person is no longer employed. The plaintiff does not need help full-time anymore. Currently she only helps him with his underwear and shoes because he cannot bend to put them on.

[47] Under cross-examination she testified that the person who assisted her only did that for two years. She paid her R1 500,00 per month. In the beginning she came to work Monday to Friday. From the seventh to the eighth month, she only came twice or two to three days a week. She increased her salary after a year because she had to help her with the bus fare.

[48] Mr Louis Johannes Coetzee (plaintiff) testified that he was involved in an accident on 2 May 2016. He was just over 65 years and was employed at Blitz Medical Couriers at the time. The normal retirement age at Blitz Medical Couriers is 65 years. There was an arrangement that he could stay longer as long as he could. He had intended to stay at his employment for as long as his employer needed him.

[49] Under cross-examination he gave a brief history of his employment until he started working for Blitz Medical Couriers on 1 June 2004. He was referred to a Memorandum of Agreement: Retirement entered into between him and his employer (Blitz Medical Couriers). Paragraphs 3 and 4 of the agreement reads:

“3. Purpose of the settlement agreement

3.1 Whereas the employer has an operational need to introduce an agreed to retirement age of 65 in the company;

3.2 Whereas the employee has already surpassed the age of 65; and

3.3 Whereas the parties have agreed, without prejudice, that the employee shall retire on the following terms:

4

Terms of the agreement

Now therefore the parties agree as follows:

4.1 The employee’s last working day shall be on 31 July 2016;

4.2 The employee’s notice period commenced on 12 July 2016; …”

[50] There were also two letters dated 25 July 2016 and 24 August 2016 addressed to the plaintiff and his attorneys pertaining to his retirement date and his last working day.

[51] He corroborated the evidence of his wife that after his discharge from the hospital, a domestic worker was employed to assist him. The domestic employee came to work once a week. Due to financial constraints, he had to ask her to leave. He only called her when the need arose. The domestic worker worked for ± 9 months before she was asked to leave. After she had left, he was able to help in the house with cleaning the kitchen and wiping the floors. He does not need any assistance currently. His wife can only assist him with the showering once in a while.

[52] Under re-examination he testified that he retired after the accident because he was not fit to carry on working. His wife is a pensioner.

The domestic worker did the cleaning of the house. He could not tell whether they had a domestic worker prior to the accident.

[53] The report of Dr P Engelbrecht (the orthopaedic surgeon) has been admitted in its entirety. The plaintiff reported to Dr P Engelbrecht

that he can only walk a short distance. He cannot walk longer than 15 minutes and has to use a crutch to be able to walk. He cannot take weight on his right leg. The right leg is shorter and it tends to swell. On a regular basis, he has to take diuretics to alleviate

swelling of the right leg. There were no complaints relating to the right hip. The right knee has impaired motion, especially flexion.

The knee feels stable.

[54] The plaintiff is right-handed. He has not regained full function of the right index finger and has difficulties in managing the toilet. His wife has to assist him when he goes to the toilet. The grip strength of the right hand is diminished. No complaints were raised regarding his left knee. There was no swelling and the joint is stable. Abrasions have all healed. The right leg is shortened by 1.1 cm.

[55] According to Dr P Engelbrecht, taking into account the sequelae of the accident, also the plaintiff’s age, he was not able to return to work after the accident. He was able to continue working at Blitz Couriers, after the age of 65, as a contract worker. He is of the view that the period of expected employment as a contract worker after the age of 65 years by Blitz Courier as a driver, needs to be discussed. The plaintiff suffered from comorbidities prior to the accident, including pacemaker, hypertension as well as asbestosis of the lungs. With this in mind, the plaintiff would in all probability not have been able to continue working after the age of 65 as a contract worker for a period of longer than 2 years. The above translates into the period of sick leave/inability to work from date of accident until the age of 65 years and a further period after the plaintiff has reached 65 years of 2 years’ loss of earnings. He deferred to evaluation by an Industrial Psychologist and Occupational Therapist for adaptations to the plaintiff’s environment to cope with activities of daily living.

The legal principles

[56] In Southern Insurance Association v Bailey NO[1], the court held that:

“[1] Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or oracles. All that the court can do is to make estimates, which is often a very rough estimate, of the present value of loss. It has open to it, two possible approaches: One is for the judge to make a round estimate of an amount which seem 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.

[2] It is manifest that either approach involves guesswork to a greater or lesser extent. When it comes to scanning the uncertain future, the court is virtually pondering the imponderable, but must do the best it can on the material available even if the result may not inappropriately be described as an informed guess, for no better system has yet been devised for assessing general damages for future loss.

[6] I must however emphasise that because of the speculative nature of the enquiry, when parties elect to approach the court on a stated case and a lump sum of money is claimed, as in the present case, R6 653 636,00 from the public coffers, it is incumbent on the parties to place before court sufficient evidence in the form of admissions and

other admitted format.”

[57] In considering whether compensation to family members and relatives should be allowed, Lord Denning MR stated the following in Cunningham v Harrison and Another[2]:

“… The plaintiff’s advisors seem to have thought that a husband could not claim for the nursing services rendered by a wife unless a husband was legally bound to pay for them. So, on their advice … an agreement was signed whereby the husband agreed to pay his wife £2000 per annum in respect of her nursing services … I know the reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them … But, I think that view is much too narrow. It seems to me that when a husband is grievously injured – and is entitled to damages – then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her …”

Discussion

[58] Mr Van Antwerpen on behalf of the plaintiff submitted that actuarial calculations were obtained to calculate the plaintiff’s past loss of income for the periods from 02/05/2016 to 31/07/2016 (three months’ recuperation) and from 01/08/2016 to 31/01/2019 (three years early retirement) based on the plaintiff’s experts’ opinion that he would have been able to work for another two to three years and even possibly until 70 years. Further that the plaintiff should be paid the costs of a caregiver for a period of 4 to 5 months after the accident and from 2 October 2016 until 4 November 2019. He proposed that a high contingency deduction of 50% should be applied on the total amount payable.

[59] Mr Mashilane on behalf of the defendant disagreed with the above submissions and argued that the opinions of the plaintiff’s

experts were contradicted by his evidence and that of his wife. He submitted that while the plaintiff’s wife testified that they had employed a domestic worker to assist for five days and later on for one to two days, the plaintiff testified that the domestic worker only came to work once a week. Furthermore, the plaintiff testified that he was able to do things on his own five months after the accident. He could clean the kitchen and occasionally once a while he would ask for his wife’s assistance. The experts’ evidence on the other hand painted a different picture that the plaintiff could not look after himself.

[60] With regard to issue of the future loss of earnings, Mr Mashilane referred me to the unreported case of Johannes Nicolaas Thilion Lerm v The RAF[3] and submitted that the normal retirement age is 65 years. Anything outside the normal retirement age should not be compensated.

Whether the accident-related injuries and its sequelae resulted in the plaintiff having to retire early and therefore entitling the plaintiff payment for future loss of earnings

[61] In the Lerm matter[4], the plaintiff who was 71 years old at the time of the accident, submitted he was still working and that without the accident he would have worked until he retired at the age of 75. On behalf of the defendant, it was argued that the normal retirement age was 65 years and that retirement at the age of 75 was outside the norm. The court relied on the case of Rubin Sportswear v SA Clothing and Textile Workers Union and Others[5] and held that whether a company has a normal retirement age for the employees will depend on the facts. The onus is on the plaintiff to prove the facts that determine the normal retirement age at the company in which he was working. The plaintiff

should inform the court through credible evidence as to how this retirement norm has been practised and the particular number of the employees in the same category who have retired at the age of 75. Furthermore, the said employees should be sufficiently large to justify saying that it is the norm for that company. It concluded that the evidence presented was not sufficient to show the court that that was a common practice, which had become a norm at the mine where the plaintiff worked, for mine managers like the plaintiff to retire at 75 years or more. The plaintiff’s claim for loss of income or earnings was ultimately dismissed.

[62] Mr Van Antwerpen for the plaintiff submitted that the case of Lerm[6] was distinguishable in that there was no evidence led from Mr Lerm’s employment. It is correct that in the Lerm matter the evidence from his employment was not led. That distinction, in my view, is immaterial and does not assist the plaintiff’s case.

[63] In the present matter, Mr Booysen, the Chief Executive Officer of Blitz Medical Couriers testified that the plaintiff was offered a temporary contract after retirement, which contract would be renewed every six months and the renewal thereof would have continued until the age of 68 years. On 29 July 2016 the plaintiff and his former employer, Blitz Medical Couriers entered into a retirement agreement in terms of which they agreed that the plaintiff’s last working day was on 31 July 2016.

[64] There is no evidence to show that the contract was renewed for another six months after 31 July 2016, and that other employees who had reached the age of 65 years’ contracts had been renewed every six months and that they have worked until they reached the age of 68 years. Mention was made of a certain Mr Labuschagne that he has worked at Blitz Medical Couriers until he reached the age of 68. In the Rubin Sportswear matter[7] it was clearly spelt out that:

“… A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period – so long that it can be said that the norm for employees in that workplace or for employees in a particular category is to retire at a particular age. An example would be where, without any formal agreement, employees in a particular category have over 20 years been retiring at a particular age without fail. The period must be sufficiently long and the number of employees in the particular category who have retired at that age must be sufficiently large to justify saying that it is a norm for employees in that category to retire at that age. If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. If the period is very long but the number of employees in the particular category who have retired at that age is not that large enough, it might be difficult to prove that a norm has been established.”

[65] The evidence presented does not establish that there have been a number of employees in the same category as the plaintiff who have retired at the age of 68 over a sufficiently long period. This therefore makes it difficult for one to conclude that a norm has been established that the plaintiff would retire at the age of 68 years.

[66] It is common cause between the parties that the age of retirement at Blitz Medical Couriers is 65 years old and that in terms of the agreement between the plaintiff and his employer, his last working day was 31 July 2016. The plaintiff became 65 years old in January 2016. He is therefore entitled to past loss of income or earnings for the period May to July 2016 as he did not return to work after the accident.

The costs of past care giving

[67] There is uncontested evidence that the plaintiff’s wife took care of him for 4 to 5 months after the accident where he could not do anything. According to Ms Carole Pretorius, the Occupational Therapist, the assistance given during recuperation is justified and is due to the accident. The total costs as calculated by the actuary amount to R29 681,00.

[68] The plaintiff’s wife further testified that she had to assist the plaintiff until the previous year. She had to employ someone to help her to turn the plaintiff, prepare food and look after the house. The person is no longer employed. The plaintiff does not need help anymore. As against this evidence, the plaintiff testified that the domestic worker worked for them for ± 9 months before she was asked to leave. After she had left, he was able to help in the house with the cleaning of the kitchen and wiping of the floors. He does not need assistance currently. His wife can only assist him with the showering once a while. There were also some discrepancies between the plaintiff and his wife’s evidence regarding how often the domestic worker came to assist. According to the plaintiff, she came once a week. The wife testified that she initially came from Monday to Friday and later twice a week or two to three days a week.

[69] In response to the above discrepancies, Mr Van Antwerpen submitted that the court should consider the fact that according to plaintiff’s

experts, the plaintiff’s memory is not good. The plaintiff could not even recall when the domestic worker was employed. It

cannot be said that he was not honest with the court. He would say if he cannot recall something or when he is not sure.

[70] Although it was argued that what is being claimed is not the costs of the domestic worker, the evidence is crucial as it goes to the credibility of the witnesses. The evidence of Ms Pretorius, the occupational therapist was clear regarding the fact that it was reported to her that for 4 to 5 months after the accident, the plaintiff’s wife cared for him. It is crucial for the

plaintiff’s wife to say until the previous year she cared for the plaintiff, in contradiction to Ms Pretorius’s evidence and the plaintiff who testified that the domestic worker only worked for 9 months. Due to financial constraints, she was requested to stop working. After she had left, he was able to assist his wife with the house chores. This is the person the occupational therapist has recommended that he should be paid for the costs of care giving from October 2016 to November 2019.

[71] I do not agree that this has to do with the plaintiff’s memory as argued by the plaintiff’s counsel. Why would the plaintiff

specifically remember that the domestic worker worked for 9 months and that immediately thereafter he was able to assist his wife with the house chores. Why would only the plaintiff’s wife and not the plaintiff and Ms Pretorius mention that the plaintiff could not care for himself until the previous year. The expert’s opinion is also based on what he/she was told by the plaintiff and those who live with him. If it was reported to Ms Pretorius that the plaintiff could not care for himself and his wife assisted him until the previous year, Ms Pretorius would have mentioned it in her report as she did regarding the period of 4 to 5 months after the accident. Given this discrepancies, and the fact that Ms Pretorius has not laid the basis for allowing the costs of the care giver for the period October 2016 to November 2019 in her report, I conclude that the plaintiff has failed to prove that he suffered this loss on a balance of probabilities. In my view, the loss for this period is not justified.

[72] Under the circumstances the plaintiff is entitled to the following heads of damages:

Past loss of income or earnings for the period from 2 May 2016 to 31 July 2016

Amount

R16 790,00

and the costs of past care giving for the period 2 May 2016 to 1 October 2016

Total amount for 5 months

R29 681,00

R46 471,00

[73] The RAF is liable to pay 50% of the plaintiff’s proven damages. The amount payable to the plaintiff is therefore R23 235,55.

Costs

[74] I was requested to award costs on a punitive scale against the defendant should I find that the plaintiff is entitled to past loss

of income or earnings and the costs of the caregiver. Considering the fact that the plaintiff was only partially successful with his claim, I am not inclined to award such a costs order.

[75] In the result I make the following order:

1. The draft order marked “X” is made an order of court.

Electronically signed

M J TEFFO

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Appearances

For the plaintiff

M van Antwerpen

Instructed by

Adams & Adams

For the defendant L Mashilane

Instructed by

Matabane Inc

Delivered on

24 July 2020

[1] 1984 (1) SA 98 (A)

[2] [1913] 3 All ER 463 (CA); see also Webster and Others v Commercial Union Insurance Company of South Africa, Ltd 1997 QOD 4 A4-154 (C) at A4-756; Zarrabi v Road Accident Fund 2006 QOD 5 B4-231 (T) at B4-244-246

[3] Case No 38035/14 delivered on 7 March 2019

[4] Supra

[5] (CA 8/03) [2004] ZALAC 8 (9 July 2004)

[6] Supra

[7] Supra para 22