Brief Summary

Damages — Road Accident Fund — Claim for damages arising from motor vehicle accident — Plaintiff, as curator ad litem for Ms. Wessels, sought compensation for severe injuries sustained in an accident caused by the reckless driving of another vehicle — Defendant conceded merits of the claim at trial, agreeing to liability for past and future loss of income and general damages — Court held that the Road Accident Fund is liable to compensate victims of motor vehicle accidents in accordance with the Road Accident Fund Act 56 of 1996.

Comprehensive Summary

Summary of Judgment

Introduction

This was a delictual damages claim instituted in terms of the Road Accident Fund Act 56 of 1996 arising from a motor vehicle collision, in which the plaintiff sought compensation from the Road Accident Fund for injuries suffered by an accident victim.

The plaintiff was Advocate Chrisna Bekker N.O, acting in a nominated officio capacity as curator ad litem for Luhette Wessels (referred to in the judgment as “Ms Wessels”). The defendant was the Road Accident Fund, a juristic person established under section 2 of the Road Accident Fund Act 56 of 1996.

Summons was issued under case number 2822/2021. The defendant defended the action. After close of pleadings, the plaintiff delivered multiple expert notices and reports; the defendant filed no expert reports. The matter was certified trial-ready and enrolled for trial on 12–13 September 2023. At the commencement of trial, the defendant conceded the merits (liability) at 100% in favour of the plaintiff. Issues relating to quantum, including past and future loss of income and general damages, proceeded for determination. Certain medical expense issues were postponed, and an undertaking for future medical costs was addressed by agreement.

The general subject-matter concerned the quantification of damages, particularly the extent to which Ms Wessels’ injuries affected her earning capacity and the appropriate approach to assessing loss of earnings in circumstances where the factual foundation (education and employment history) was disputed or inconsistently recorded across expert materials.

Material Facts

On 28 October 2019, Ms Wessels was involved in a collision on the R59 between Vereeniging and Sasolburg (Free State) while she was a passenger on a motorcycle driven by Braam Bezuidenhout (deceased). The motorcycle collided with a motor vehicle with registration number recorded in the judgment. The defendant ultimately conceded that the collision was caused solely by the negligent driving of the motor vehicle, including overtaking without a proper lookout and driving under the influence of alcohol.

It was common cause that Ms Wessels suffered multiple serious injuries, including a below-knee amputation of the right leg, a severe traumatic brain injury, internal abdominal bleeding, fractures to the femur and pelvis, fractures to the proximal phalanges of both fifth fingers, and significant psychiatric sequelae recorded in the expert materials (including depression, anxiety, post-traumatic stress symptoms, and psychotic features in some reports). She was approximately 20 years old at the time of the accident (with her date of birth stated as 9 May 1999 by her mother).

The court treated as material, and as a central difficulty for adjudication, that the evidence and expert reports contained inconsistent and unverified information concerning Ms Wessels’ pre-accident education trajectory, occupational history, earnings, and living arrangements. The plaintiff’s case on future earnings progression depended on assumptions that Ms Wessels would have progressed beyond matric (NQF level 4) to a higher qualification (NQF level 5) and would have followed a particular earnings pathway. However, the court noted contradictions between what was recorded by different experts, and a lack of documentary corroboration such as payslips, employer confirmations, or school reports.

The judgment also relied on the fact (derived from the plaintiff’s own expert materials) that Ms Wessels was not uniformly described as permanently unemployable. While some evidence suggested profound impairment, other reports recorded improvement on treatment and a capacity for sedentary to light work, and there was evidence that she had at one stage secured employment at a crèche after the accident. The court regarded this as inconsistent with the position that she was entirely unemployable on the open labour market.

Procedurally and evidentially, the court relied on the parties’ trial agreements that merits were conceded; that various expert reports were admitted or not challenged as to expertise; and that a revised section 17(4)(a) undertaking would be issued for future medical-related costs at 100%. The court further relied on the limitation regime for loss of income contained in the Road Accident Fund Amendment Act and the actuarial approach adopted, but scrutinised the assumptions underlying the actuarial calculation.

Legal Issues

The central legal questions concerned the assessment and quantification of damages, especially past and future loss of earnings, in circumstances where the plaintiff bore the onus to prove the factual predicates for the claimed earning trajectory but the record revealed material inconsistencies and missing corroboration.

The dispute was primarily about the application of legal principles governing damages to contested or uncertain facts, together with evaluative choices in the exercise of a judicial discretion, including the selection of appropriate contingency deductions. It required the court to determine, on the evidence before it, whether Ms Wessels should be treated as unemployable, merely employment-compromised, and whether she would probably have progressed to NQF level 5 (as assumed in certain reports) or should be confined to an earnings model at NQF level 4.

A further procedural issue arose regarding whether a “new actuarial calculation” attached to heads of argument could be considered, given Rule 36(9)(a) and (b) requirements for expert summaries and notices.

Court’s Reasoning

The court approached the quantification of patrimonial loss on the footing that, where monetary loss is established but cannot be precisely proved, a court must do the best it can with the available material, even if the result is an estimate. In this regard, the court referred to Hersman v Shapiro and Co 1926 TPD 367 and Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A) as authority for the proposition that assessing future loss entails dealing with uncertainty and may amount to an informed estimate.

A significant part of the court’s reasoning focused on the reliability of the factual assumptions used by the plaintiff’s experts. The court highlighted internal contradictions and gaps across reports regarding Ms Wessels’ residence and her employment history (including where she worked, the sequence of employment, the duration, and earnings). The court found that key experts, particularly in the educational and industrial psychology evidence, had not verified employment history and, in the court’s view, relied heavily on untested accounts without documentary support. The court treated this as materially undermining the reliability of the earnings trajectory that was advanced to support the actuarial quantification.

The court rejected the assumption that Ms Wessels would probably have progressed to NQF level 5. It held that there was no evidentiary basis (on the materials before it) to support that level of educational advancement, and it noted the absence of school reports and the limited academic documentation beyond a matric certificate. The court therefore determined that the loss calculation should be anchored at NQF level 4, rather than modelling an NQF level 5 earnings ceiling.

On employability, the court reconciled conflicting expert conclusions. It noted that one expert described the traumatic brain injury as among the worst encountered and concluded that Ms Wessels was unemployable, but other materials recorded functional capacity for sedentary/light work, improvement on medication, and the fact that she had in fact obtained employment after the accident. The court therefore reasoned that the evidence did not support a conclusion that her employability was entirely extinguished, but rather that her occupational progress and prospects were significantly compromised.

In relation to the actuarial evidence, the report of Mr Whittaker was admitted as expert evidence, but the court scrutinised the information upon which it was based, noting that it relied on other reports which the court regarded as unreliable on key inputs. The court also noted that a revised actuarial calculation could not be considered because it did not comply with Rule 36(9)(a) and (b) and had not been made available in the manner required.

The court then exercised a discretion in selecting contingencies. Although the actuarial report applied certain contingencies (including 21% for future loss), the court concluded that, cumulatively considering the uncertainties and unreliable factual underpinnings, a higher contingency deduction was appropriate. It determined that 25.5% was the correct contingency for future loss. On this basis, it calculated a net past loss and net future loss (with Ms Wessels’ “injured” income treated as nil), producing a total loss of earnings figure set out in the judgment.

The court further considered the need for protection and preservation of the award, given uncertainty about Ms Wessels’ ability to manage major decisions and financial affairs. It concluded that the funds should be paid into a trust structure created under the Trust Property Control Act, with detailed governance provisions.

Outcome and Relief

The court ordered the defendant to pay the plaintiff a capital amount of R 6 064 079,90, described in the order as being for past and future loss of income arising from the accident of 28 October 2019.

The defendant was directed to furnish an undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for 100% of the costs of future hospital/nursing accommodation, treatment, services, or goods arising from the injuries, payable after costs are incurred and on proof thereof.

The plaintiff’s attorneys were ordered to create a trust in accordance with the Trust Property Control Act 57 of 1988, with Ms Wessels as the sole beneficiary, specified trusteeship arrangements through Standard Trust Limited, security requirements, and detailed provisions regarding trustee remuneration, audits, conflict disclosure, dispute procedures, amendment, and termination. The capital amount was to be paid to the trust after deduction of attorneys’ fees, disbursements, and expenses.

The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs, including the reasonable reservation and qualifying fees for the plaintiff’s listed experts. Payment of the capital and costs was ordered within 180 days (capital from date of order; costs from taxation/agreement). Interest was ordered at 11.75% per annum compounded, calculated from 14 days after the relevant dates specified in the order.

Cases Cited

Hersman v Shapiro and Co 1926 TPD 367.

Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A).

Road Accident Fund v Sweatman (162/2014) [2015] ZASCA 22.

WV v Road Accident Fund 2019 (7A4) QOD 113 (FB).

Seme v Road Accident Fund 2008 (5A4) QOD 33 (D).

Khokho NO obo MG v Road Accident Fund 2019 (7A4) QOD 125 (FB).

Legislation Cited

Road Accident Fund Act 56 of 1996.

Road Accident Fund Amendment Act 19 of 2005.

Trust Property Control Act 57 of 1988.

Rules of Court Cited

Uniform Rules of Court, Rule 36(9)(a).

Uniform Rules of Court, Rule 36(9)(b).

Held

The court held that although the defendant was liable on the merits (as conceded), the quantification of loss of earnings required careful scrutiny because the plaintiff’s expert materials contained materially inconsistent and unverified information regarding Ms Wessels’ pre-accident education and work history.

The court held that there was no adequate basis to model Ms Wessels’ likely pre-accident career trajectory on an assumption that she would have progressed to NQF level 5, and it confined the earnings model to NQF level 4. It further held that the evidence did not justify treating her as entirely unemployable in perpetuity, but rather as having an employment capacity that was significantly diminished.

The court held that a revised actuarial calculation introduced via heads of argument could not be considered because it did not comply with Rule 36(9)(a) and (b). It held that, given the uncertainties and evidential deficiencies, a higher future contingency deduction of 25.5% was appropriate for purposes of the loss of earnings calculation.

The court held that protective measures were required for the management of the award and ordered the establishment of a trust under the Trust Property Control Act, together with a full section 17(4)(a) undertaking for future medical-related costs, and made costs orders in favour of the plaintiff including specified expert costs.

LEGAL PRINCIPLES

A court assessing damages for loss of earnings must award an amount where pecuniary loss is established, even if the quantification is necessarily an estimate; the court must make the best use it can of the evidence available, recognising that future loss assessment involves uncertainty.

In assessing future loss, the court may be required to make an “informed guess” based on the material before it, because the future is inherently uncertain; however, the factual assumptions underlying any quantification must be supported by reliable evidence.

Where expert opinions and actuarial calculations depend on underlying facts (such as education and employment history), the weight given to such opinions may be reduced where the underlying facts are inconsistent, unverified, or not supported by documentary corroboration, particularly where those facts are central to the claimed earnings trajectory.

A court retains a discretion to apply contingency deductions that reflect the uncertainties of the claimant’s likely career path, including uncertainties exacerbated by unreliable or incomplete evidence, and to adjust contingencies accordingly.

Expert materials not properly introduced in compliance with Rule 36(9) requirements may be excluded from consideration, even where they are appended to heads of argument, if not timeously disclosed or admitted by agreement.

Bekker N.O obo Wessels v Road Accident Fund (2822/2021) [2023] ZAFSHC 443 (9 November 2023)