Brief Summary

Road Accident Fund — Claim for damages — Plaintiff seeking compensation for future loss of earnings following motor vehicle accident — Defendant's application for postponement dismissed — Court held that determination of loss of earning capacity is not contingent on pending issues regarding general damages — Plaintiff established on balance of probabilities that he suffered a mild brain injury and consequent loss of earnings due to the accident — Award for future loss of earnings granted based on expert testimony and assessment of Plaintiff's diminished earning capacity.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an action for delictual damages instituted in the High Court of South Africa, Gauteng Division, Johannesburg, arising from a motor vehicle collision. The plaintiff, Raju Mohamed Rashid, sued the defendant, the Road Accident Fund (“RAF”), for compensation in terms of the Road Accident Fund Act 56 of 1996.

By the time of trial, the RAF no longer disputed the merits of the claim, and the matter proceeded on the remaining issues relevant to quantum. A further procedural development was that on 12 May 2023 the RAF rejected the plaintiff’s Form 4 serious injury assessment for purposes of general damages. As a result, general damages were not determined in this judgment.

The court was ultimately required to determine the RAF’s liability and quantum for the plaintiff’s loss of earnings / earning capacity, particularly in relation to future loss, in circumstances where the plaintiff alleged ongoing sequelae including neurocognitive and psychological consequences.

2. Material Facts

The collision occurred on 20 February 2016. The plaintiff was 28 years old at the time and was 35 years old by the hearing.

It was undisputed that the plaintiff sustained a fracture of the proximal right femur and a soft tissue injury to the lumbar spine. He was admitted to Lenmed Hospital, where his Glasgow Coma Scale was recorded as 15/15, and the hospital records noted no loss of consciousness. He underwent surgery to the right femur, with a rod inserted, and he was hospitalised from 20 to 25 February 2016. The rod was later removed in March 2019.

The plaintiff reported ongoing complaints after the accident. These included physical limitations (including difficulty sitting or standing for long periods, and pain aggravated by cold weather) and subjective cognitive and psychological complaints (including difficulty focusing and reduced work performance). He also reported trauma-related avoidance of the accident site where possible and stated that he felt sad and depressed.

A key area of dispute concerned the existence and impact of a mild traumatic brain injury and psychological sequelae. The plaintiff relied on expert evidence indicating he probably sustained a mild traumatic brain injury, and that he exhibited symptoms consistent with travel-related anxiety and mild depression, with testing suggesting impaired mental control (including sustained attention and awareness of errors). The RAF did not contest the orthopaedic injuries, but it rejected the diagnosis of mild traumatic brain injury and mild depression, including by pointing to the absence of sustained treatment over the intervening years.

The plaintiff’s employment history was central to the loss claim. It was common cause that he was employed at the time of the accident and remained employed thereafter. He worked (both then and at trial) for Diner’s Club as a consultant in the Authorisations and Fraud Department. The job was described as sedentary, office-based, and involving shift work, with remuneration comprising a basic salary and fluctuating overtime. The evidence included that his supervisor had regarded him as a strong performer pre-accident; post-accident his performance reportedly dropped and he was placed on performance management for a period, though it was also clarified in oral evidence that he was no longer on performance management and had received discretionary bonuses and salary increases in the years after the accident.

The RAF tendered an undertaking under section 17(4)(a) for future medical expenses arising from accident-related injuries. The matter was treated as settled on 80% merits.

3. Legal Issues

The central questions for determination were whether, on a balance of probabilities, the plaintiff had established that the collision caused a compensable loss of earning capacity, including future loss of earnings, and if so, what a fair and reasonable quantification of that loss should be in light of the evidence.

This required the court to decide issues involving the application of legal principles to facts, with an appreciable element of value judgment and estimation, because damages for loss of earning capacity are inherently speculative and require the adoption of assumptions and contingencies.

A preliminary procedural issue also arose when the RAF applied from the Bar for the matter to be removed from the roll or postponed, partly on the basis that the general damages dispute (before the statutory appeal tribunal process) should be resolved first and to avoid a “piecemeal” determination.

4. Court’s Reasoning

The court first dealt with the RAF’s application for removal or postponement. It considered authority confirming that the determination of loss of earning capacity by a court is not dependent on the outcome of the RAF’s serious injury appeal process. The court further emphasised that the RAF’s application was not brought on proper notice, no substantive application was placed before the court, and condonation was not sought. In the absence of substantive reasons why the matter could not proceed, the application was dismissed.

On the merits of the loss claim, the court applied the principle that a plaintiff seeking compensation for loss of earnings or earning capacity must establish, on a balance of probabilities, that the accident caused a loss of future earning capacity. The court reiterated that the compensatory aim is to place the plaintiff in the position he would have been in but for the accident, while ensuring that any award remains fair to both sides. It also relied on the principle that quantification of such loss is necessarily speculative, requiring the court to make an estimate that is fair and reasonable.

A significant evidentiary difficulty identified by the court was the absence of medical records supporting a frontal lobe organic injury, and that the neurosurgical expert could not confirm such a diagnosis definitively. Nonetheless, the court was not prepared to wholly dismiss the neurosurgeon’s expert opinion, particularly in circumstances where the RAF did not present an alternative expert opinion to contradict it. The court referred to authority recognising the role of expert witnesses in drawing inferences and providing opinions, including the grounds for those opinions.

On this basis, the court accepted, on a balance of probabilities, that the plaintiff suffered a mild brain injury with mild effect, and it accepted the clinical psychologist’s finding that the plaintiff experienced travel-related anxiety and mild depression. The court noted the RAF’s point that the plaintiff had not sought treatment for depression over seven years, and observed that if the plaintiff were to obtain treatment, there was no reason the effects could not be ameliorated. This observation formed part of the court’s assessment of the likely impact of the psychological sequelae on earnings.

In assessing contingencies and future career prospects, the court took into account that the plaintiff remained employed for seven years post-accident in work suitable to his limitations, that he had received discretionary annual bonuses, and that he had declined to apply for a suitable vacancy that arose some years after the accident. The court was not persuaded that he would necessarily be unable to achieve further career progression within the company. These considerations informed the contingency deductions selected to reflect realistic uncertainties without overcompensating.

The court applied contingencies to the pre-morbid and post-morbid scenarios and quantified the plaintiff’s net loss (including a modest past loss and a larger future loss) by adopting the actuarial framework presented and adjusting it with the court-selected contingencies. The net loss was calculated as R 415,941.00, made payable subject to the apportionment reflected in the order.

5. Outcome and Relief

The court ordered that the RAF was liable for 80% of the plaintiff’s proven or agreed damages.

It ordered the RAF to pay the plaintiff a net amount (after apportionment) of R 415,941.00 in settlement of the plaintiff’s claim for the loss determined in this judgment, with payment to be made into the plaintiff’s attorneys’ trust account within 180 days of the court order.

The court further ordered the RAF to furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for 80% of qualifying future medical-related costs arising from the injuries sustained in the collision, with delivery of the undertaking within 14 days.

The issues of past medical expenses and general damages were postponed sine die. The court also directed that the defendant register the matter on the RNYP list within 14 days of receipt of the order.

The RAF was ordered to pay the plaintiff’s taxed or agreed party-and-party costs on the High Court scale to date of the order, including (as specified in the order) the costs of various medico-legal reports, joint minutes preparation, and the qualifying and attendance fees of identified experts and counsel, together with associated reasonable costs as delineated in the costs order. A time period was set for payment after taxation if costs were not agreed.

Cases Cited

Botha v Road Accident Fund 2015 (2) SA 108 (GP)

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA)

Southern Insurance Association Ltd v Bailey 1984 (1) SA 98 (A)

McGregor and Another v MEC Health Western Cape [2020] ZASCA 89

Legislation Cited

Road Accident Fund Act 56 of 1996

Section 17(4)(a) of the Road Accident Fund Act 56 of 1996

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the RAF’s application for removal from the roll or postponement, brought from the Bar without proper notice or condonation and without substantive grounds justifying non-enrolment, should be dismissed, and that the loss of earning capacity determination was not dependent on the outstanding serious injury/general damages process.

On the merits, the court held that the plaintiff proved, on a balance of probabilities, that the accident caused a loss of earnings and a diminution in earning capacity. Despite the absence of definitive medical records confirming frontal lobe organic injury, the court accepted the neurosurgical opinion that the plaintiff probably sustained a mild traumatic brain injury, and accepted associated psychological sequelae (travel-related anxiety and mild depression) as contributing factors relevant to earning capacity.

The court held that the appropriate quantification required contingencies reflecting the plaintiff’s ongoing employment history, his suitable current position, and the evidence on performance and career prospects post-accident. Applying those contingencies, the court awarded a net amount (after apportionment) of R 415,941.00, together with an undertaking under section 17(4)(a), while postponing past medical expenses and general damages sine die and awarding costs to the plaintiff.

LEGAL PRINCIPLES

A plaintiff claiming damages for loss of income or earning capacity must prove, on a balance of probabilities, that the accident caused a diminution of earning capacity resulting in a patrimonial loss, and the assessment must aim to place the plaintiff in the position he would have been in had the delict not occurred, subject to fairness to both parties.

The quantification of damages for loss of earning capacity is inherently speculative and requires the court to make a fair and reasonable estimate based on the evidence, recognised actuarial methodology, and judicially determined assumptions and contingencies.

An expert witness may provide opinions and inferences on matters within their expertise and explain the grounds for those opinions, and a court should not lightly disregard such expert reasoning in the absence of a proper basis to do so, while still weighing limitations in the underlying factual and medical foundation.

The determination of loss of earning capacity by a court is not treated as dependent on the outcome of the RAF serious injury assessment/appeal process relating to general damages, and procedural applications affecting the hearing (such as postponements) must be properly brought with notice and adequate substantiation.

Rashid v Road Accident Fund (2016 / 30396) [2023] ZAGPJHC 525 (19 May 2023)