SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: 11620/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE
SIGNATURE

In the matter between:

N[...] M[...] PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT


MAPHELELA AJ:

1. The plaintiff is an adult male person who was born on the 08th November 2001
and has instituted a claim against the defendant resulting from the injuries sustained in
a motor vehicle accident which occurred on the 06th January 2015. it is alleged that at
the time of the accident the plaintiff was a passenger in a vehicle with registration
numbers and letters C [...] when the driver lost control of the vehicle. As a result the
plaintiff sustained serious bodily injuries.

2. At the beginning of the trial I was informed by counsel for the plaintiff that, the
defendant is around court and has been in cour t since the calling of the roll call. The
counsel indicated that the defendant’s counsel told him he has no instruction to settle
the matter and that should the plaintiff be willing to call the matter and proceed with the
hearing he may proceed to do so. I have stood the matter down and requested the
counsel for the plaintiff to call the defendant’s counsel and attorneys to court, however,
when the matter was recalled again I was told that the counsel and or the legal
representatives for the defendant are n ot in court and the attorney indicated that he has
became sick and will not be able to attend court. It must be indicated that the defendant
never reported any sickness and inability to attend court until the matter was stood
down for the plaintiff to look for them. There is also no reason advanced to court as to
why no counsel was appointed to represent the defendant nor to inform the court of any
of the allegations as indicated. On that basis the matter proceeded on unopposed basis.

3. The plaintiff informed the court that the merits of the claim was previously settled
between the parties at concession in favour of the plaintiff. On the quantum aspect,
general damages was settled and an interim payment in respect of the loss of earnings
was also agreed betwee n the parties which interim payment should be deducted on any
amount to be awarded to the plaintiff in respect of loss of earnings if any. The court was
also provided with draft orders reflecting the settled issues as referred to above. The
plaintiff has ap pointed a number of experts to quantify the plaintiff’s claim.


4. The plaintiff among others sustained the following injuries in the accident which
are described as the head injury which is referred to as moderate head injury from the
linear Skull fracture. H e also sustained a T3/T4 spine fracture and now presenting with
significant long term mental disturbance and poor concentration. He remained an in -
hospital patient until he was discharged after ten days from the hospital. The plaintiff
alleges to still be seriously struggling with accident related sequelae of the injuries
sustained.

5. The counsel for the plaintiff indicated that, the plaintiff completed a grade 12 level
of education pre -accident according to the educational psychologist, and post the
acciden t and after spending a gap year not doing anything relating to his studies, he
registered for an LLB with the university of Limpopo and only attended for one week and
then dropped out due to the sequelae of the injuries sustained in the accident. It was
further indicated that according to the assessment by the educational psychologist, he
was of average intellectual ability who worked hard to achieve his dreams and was
capable of passing a Bachelor’s degree and or a post -graduate studies.

6. In the post accid ent, the plaintiff suffers from constant executive headaches
which makes it difficult for him to concentrate and focus, study easily and remember
things. He suffers from pain on his back as a result of the spine fracture and as a result
among others he str uggle to sleep as he only sleeps with one position. He also feels
that his personality has changed as well as physically and mentally. His intellectual
capacity has dropped from average performing learner to below average intellectual
ability. He now strug gles with his studies and as a result will no longer be able to study
beyond matric level. The educational psychologist further indicated that he forgets
details of what he has read which suggests inadequate comprehension as well as short
and long term mem ory impairment.

7. In conclusion the counsel for the plaintiff submitted that the plaintiff would have
entered the open labour market in jobs graded at Paterson Scale B4/B5/C1 and
progressed to jobs graded at Paterson E1+ as a career ceiling. In the post acci dent he

will no longer be able to study beyond matric and that he has already dropped out of
studying law and will only remain with a matric level of education. The counsel also
made reference to the actuarial calculations and indicated that based on the
submissions made he is of the view that the plaintiff should be compensated with the
amount of R12 076 200.00 less the R1000 000.00 interim payment already made and
be compensated with an amount of R11 076 200.00. it was further submitted that the
plaintiff be awarded party and party costs including counsel’s fees on scale B of the
costs.

8. Having considered the actuarial calculations made, note was taken of the fact
that the calculations were done more than a year pre -the hearing of the matter. The
plaintiff was requested to provide a recalculations with the adjusted contingency fee at
30% in the pre -accident. The re -calculations were subsequently received and will be
discussed later in this judgement.

9. According to the Neurosurgeon the plaintiff sustained Mod erate head injury with
linear skull fracture. He now present with post injury recurrent headaches and significant
long term mental disturbances. He also sustained a T3/T4 spine fracture and his whole
person impairment was assessed at 24%. It is further ind icated that at the time of the
accident he had a brief loss of consciousness and an amnesia for one hour which
confirms a moderate head injury. He was taken to Letaba Hospital and later transferred
to Polokwane hospital for advanced medical treatment.

10. The orthopedic surgeon also noted the injuries sustained by the plaintiff in that he
wore a neck brace for one week and was furthermore treated conservatively with
analgesics. He can not carry heavy loads and experiences pain over the fractured area
when sitti ng for long. He is unable to walk longer than 1km and can only sleep with his
back. The orthopedic surgeon in his assessment indicated a discrepancy between the
patient’s medical history and the latest radio -logical findings. He however indicated that
both indicate that there could have been a relatively minor injury to the T -spine at one or
more levels.


11. According to the neuropsychological assessment by the clinical psychologist to
establish the nature and severity of any cognitive impairment, the results o f the
assessment revealed that deficits in most areas of cognitive functioning; poor sustained
attention and concentration, poor executive dysfunction, poor inadequate planning and
problem solving, poor abstract reasoning, poor concentration on numerical t ask, poor
verbal reasoning, poor immediate recall span, poor cognitive flexibility, poor
psychomotor speed and poor short -term memory.

12. With respect to the impairment assessment and results it is indicated that his self
reported BDI completed indicate moder ate levels of depression and presented with
anxiety symptoms and feels scared inside the speeding car. The self reported BAI also
indicates moderate levels of anxiety and the self reported IES -R and PCL -5 indicates
likely levels of PTSD. He now present wit h sustained cognitive impairment limitations.

13. According to the educational psychologist, the plaintiff had just passed Matric
(Grade 12 with entry to University) and had taken a gap year before proceeding with his
studies. The educational psychologist had taken note of his two failures in the pre -
accident (Grade 5 and 11) and the fact that he eventually passed grade 12 with matric
exemption. In 2021 which is post the accident, he had registered at the University of
Limpopo (Law degree) and dropped out after just one week upon realizing that he was
not copping with his studies due to challenges with attention and concentration.

14. In the pre -accident, the educational psychologist indicates the following “ An
analysis of M[...] ’s grade 12 results suggests averag e and adequate scholastic
performance of someone who would go on to pass his Bachelor’s degree and even
post-graduate studies. When one understands one’s material, one gets motivated to
study further for self -actualization and self -enhancement. According t o normal curve
and normal distribution, 68% of people are of average intelligence, which suggests that
it is most people out of every hundred, who go on and succeed in life. The same would

go for M[...] . This means that he used to understand stuff easily, pay adequate attention
and remember information adequately”.

15. It is further indicated that it does not seem probable that he will persists with his
studies, it is therefore clear that he has loss of earnings potential that he would have
earned should he ha d completed his university studies. It is indicated by the educational
psychologist further that “ He would sail easily at tertiary and gain adequate employment
that relates with his studies had it not been for the accident. In addition and in view of
his pain and physical challenges, M[...] would not be able to participate in skills
development programs as those offered in TVET institutions, as these require physical
fitness, which he does not have in view of his shoulder injury and general back pains
and headaches. He now functions as one with below Average IQ, which would not
motivate him to pursue his studies”.

16. In the post accident educational assessment the results showed cognitive,
neurocognitive and neurobehavioural challenges; PTSD and emotional dif ficulties,
which have posed the following functional difficulties for M[...] : “Compromised
concentration, attention and mental control, poor verbal and non -verbal concept
formation and reasoning; poor immediate and delayed memory and working memory,
poor psycho -motor and processing speed; highly inadequate Executive functions like
planning; organization; cognitive flexibility and inhibition; below Average IQ and
compromised scholastic skills like spelling; reading comprehension and arithmetic skills.

17. In conclusion the educational psychologist indicated the following: “ It does not
seem feasible and probable that M[...] can succeed with his tertiary studies as he feels
motivated to pursue them, in view of all the challenges that befell him, wholly accident
related. M[...] will end up with his Matric, and may not attain any further University or
even University of Technology or TVET qualification, as the latter two require even
physical abilities”.


18. The occupational therapist indicates that due to his limite d educational
attainment, he was therefore reliant on his physical skills to gain employment and as a
result of the injuries sustained he has been precluded from work exceeding light
physical strength. He is now considered a vulnerable employee in the open labour
market due to the nature and sequelae of the injuries sustained.

19. The occupational therapist further indicated that: “ Taking into account the injuries
sustained and the neurocognitive and psycho -emotional difficulties experienced, his
vocational pr ospects have been significantly negatively affected by the accident. He will
not be able to participate in work exceeding light physical demand nor will he be able to
obtain skills to allow him to work in light physical demand due to the cognitive difficul ties
reported by the clinical and educational psychologists”.

20. Based on his educational attainment as postulated by the educational
psychologist, it is noted that he registered for an LLB Degree in 2022 which would have
been the case in the pre -accident. It is indicated that LLB is on the NQF level 8 which
would have allowed him to enter the open labour market at Paterson B4/B5/C1 and
progress to Paterson E1+ as his career ceiling. Before entering the open labour market
it is noted that he would have taken f our years of study and then another 2 years for
article -ship and law school to enable him to get his admission as a legal Practitioner.
After completion of his article -ship he would therefore have entered the open labour
market on a permanent basis.

21. In the post accident scenario, it is indicated that after attaining appropriate skills
he should have been able to work in such places as protective workshops which are
safe, disability -friendly environments providing opportunities for people with disabilities
from the local communities to develop and improve their skills and to earn an income
through the products that they make to supplement their disability grants for those who
are receiving grants. Skills provided in Protective Workshops include wood -working,
Metal -Working and Textiles(Sewing).


22. The Industrial psychologist further indicated that within the protective
environment, the plaintiff would have earned in the form of regulated stipend, most likely
comparable to the lower quartile of the unskilled worker band per annum. An annual
inflationary increases would then be applicable until he reaches retirement age and
qualifies for state’s pension at the age of between 60 and 65 years.

23. Having considered all the experts reports and opinions including the plainti ff’s
submission in this regard, it is clear that the plaintiff will not be able to reach his career
ceiling as per the pre -accident educational attainment. In that instance one will therefore
have to compare the plaintiff’s earnings now that the accident h ad occurred with his
earnings if the accident did not occurred to establish his loss of earnings.

24. Wherefore it is clear that the plaintiff’s loss will be the differences between his
pre-accident and post accident educational attainment. Mark Allan Roe (un -reported)
case no. 2009/16157 South Gauteng High Court by Judge FHD van Oosten where the
issue regarding this heading was considered with reference to different case laws(
paragraph 11) Rudman vs RAF 2003 (2) SA 234 (SCA) 241H -242B where the following
was indicated: “The general principle applicable in this regard has been succinctly
stated by Chetty J in Prinsloo vs RAF 2009 (5) SA 406 (SE)with reference to the leading
cases of Santam Versekeringsmaatskapy Bpk v Byleveldt 1973 (2) SA 146 (A) 150B -D
and Dip penaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) 917B -D as follows:

25. “A person’s all -round capacity to earn money consists inter alia of an individual’s
talents, skill, including his or her present position and plans for the future and of
consideratio n 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 his/her patrimony had he/she not been
injured, and, on the other, the total present monetary value of all that the plaintiff would
be able to bring in to his/her patrimony while handicapped by the injury. Wh en the two
hypothetical totals have been compared the short fall in value if any is the extend of the

patrimonial loss. At the same time evidence may establish that an injury may in fact
have no appreciable effect on earning capacity, In which event the da mages under this
will be nil”.

26. Regarding the contingencies reference is made to the case of Southern
Insurance Association v Bailey NO 1984(1) SA 98 (A) , the court indicated that in order
to assess the plaintiff’s future loss of earnings a comparison shou ld be made between
what would the plaintiff earned pre -morbid and what he is likely to earn post -morbid.
Experts are frequently called in to assist the court, but courts are not bound by the
opinion of experts. It is the duty of the expert to furnish the court with the necessary
scientific criteria for testing the accuracy of the expert’s conclusion to enable the court to
form an independent judgement by the application of the criteria to the facts.

27. In the case of Mashaba v Road Accident Fund 2006 (5C3) Q OD 179 (T),
Prinsloo J, referring to the Bailie case above held, among others, that “where career
and income details are available, the actuarial calculation approach is more appropriate
and a court Must primarily be guided by the actuarial approach, which deals with loss of
income or earnings before applying the robust approach, which normally caters for loss
of earning capacity. This, so said the learned Judge, would help the court to ensure that
the compensation assessed and awarded to the plaintiff is as close as possible to the
actual facts relied upon”.

28. See Corbett, The Quantum of damages1, where the following appears: “In this
regard the distinction is drawn (In principle and not without difficulties) between
causation and quantification: it has neve r been the approach of the courts to resolve the
inescapable uncertainties by the application of the burden of proof. Mere difficulty in
assessing this amount will not absolve the court from arriving at an estimate. The onus
of showing that there is suffic ient likelihood of such loss rests on the plaintiff. This does
not, however, mean that where the evidence suggests a range of possibilities, the

1 Volume 1: fourth edition, Gauntlett at Page2 -4

courts will not select the one least favourable to the plaintiff because he bears the onus,
and has not proved that a more favourable ought to be preferred ”.

29. Again as pointed out by Corbett at page 30, “before damages payable to the
injured person can be assessed it is necessary that the court should determine factually
what injuries were suffered by the plaintiff as a result of the defendant’s wrongful act…”

30. “ …disability which is likely to impair the injured person’s earning capacity or to
cause a loss of the amenities of life. Such disability may be temporary or permanent.
Where it is temporary and has in fact di sappeared at the time of trial, it is not normally of
great importance as an independent factor…. On the other hand, where it is permanent
or where, though temporary, it extends beyond the time of trial, then it may cause
prospective losses, such as diminu tion in the injured persons earning capacity or
impairment of the amenities of life, for which compensation should be made by the
award of damages. moreover, a permanent disability may be present at the time of the
trial or it may be one which will only ma nifest itself at some future date” .

31. I am therefore satisfied that the injuries sustained by the plaintiff in the accident
resulted in the sequelae as indicated by various experts and that the plaintiff will not be
able to reach his pre -accident potential d ue to the injuries sustained in the accident.
One must also note that at the time of the accident, the plaintiff was not attending
school and it is indicated that he had taken a gap year. However, the information before
court is that post the accident he r egistered with the University to study LLB, however,
he only attended for one week and realized that he will not cope with his studies. As a
result he had dropped out of university as a direct result of the injuries sustained in the
accident.

32. Wherefore, it is clear that there is a difference between the plaintiff’s pre -accident
earnings and post accident earnings and the deference constitute the plaintiff’s loss. An
actuarial calculations was provided by the plaintiff with contingency deductions of 15%
uninjured and 25% injured deductions. There was also a cap applied to the calculated

loss which the actuary indicated that it amounts to a 43.10%. The actuarial calculation
was dated 07th June 2023 which is more than 1 year since the calculations. On that
basis the court requested that a revised calculations be done and that contingencies
should also be revised in that a 30% deduction should be applied in the pre -accident.

33. Van der Plaats v Southern African Mutual Fire & General Insurance Co Ltd 1980
(3) SA 105 (A) at 115 -115. where it was indicated that, “The underlying rationale is that
contingencies allow for general hazards of life such as periods of general
unemployment, possible loss of earnings due to illness, savings in relation to travel to
and from wo rk now that the accident has somewhat incapacitated or impaired him as
well as the risk of future retrenchment. The general vicissitudes of life are taken into
consideration when contingencies are considered”.

34. In the matter of Sethole v Road Accident Fund2 the issue regarding
contingencies was considered, and it was held that it is settled law that contingency
deduction is a matter which falls within the discretion of the court. A court may be
entitled, in qualifying an amount of damages, to form an estimat e of the plaintiff’s
chances of earning a particular figure. This figure will not have to be proved on balance
of probability but will be a matter of estimation. The figure is not compounded on any
logical basis.

35. The plaintiff have provided the court with the revised calculations as instructed. It
is also clear that the original claim has now been reduced by 37.34% after the
application of the contingencies as requested by the court, the plaintiff present with a
total loss of earnings in the amount of R11 9 80 700.00 on which an interim payment of
R1000 000.00 should be deducted leaving a total loss of earnings in the amount of
R10 980 700.


2 (1487/2014) [2018]ZALMPPHC 11 (17 April 2018)

36. The Court is therefore satisfied that the amount as calculated by the actuary and
after the deduction of the interim pay ment constitutes the plaintiff’s future loss of
earnings.

37. In the circumstances the court makes the following order

A) The defendant to pay the plaintiff an amount of R10 980 700.00 in respect
of the plaintiff’s future loss of earnings,

B) The plaintiff to pay the defendant’s party and party costs on a high court
scale including the counsel’s fees on scale B of costs.



T C MAPHELELA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION


APPEARANCES

FOR THE PLAINTIFF : T P MOTLATLE
INSTRU CTED BY : T MAMITWA ATTORNEYS

FOR THE DEFENDANT : NO APPEARANCE
INSTRUCTED BY : STATE ATTIORNEYS(NO APPEARANCE)

DATE OF HEARING : 11 DECEMBER 2024
DATE OF JUDGEMENT : 28 JANUARY 2025