SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 3006/2018
In the matter between
L A MOGOTLOANE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Coram: MAJOSI AJ
Heard: 04 JUNE 2024
Delivered: 05 December 2024. This judgment was handed down in court and
electronically by circulation to the parties’ representatives by email and released to
SAFLII. The date and time for hand-down is deemed to be 15h00
Summary: Past and Future loss of income - Quantum for f uture loss of income
adjudicated.
JUDGMENT
Majosi AJ
[1] The plaintiff instituted action proceedings against the defendant for damages
suffered as a result of a motor vehicle accident that occurred on 19 August 2017. On 24
February 2024, merits and general damages were separated in terms of r ule 33(4) of the
Uniform Rules of Court (Rules).
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[2] The defendant was ordered to pay 100% of the plaintiff ’s proven or agreed
damages and was awarded general damages in the amount of R1 080 000. Past and
future loss of income remained in dispute and was postponed to a later date; this is the
subject matter of this court adjudication.
[3] The matter was according ly set down for three days , but on the first day of trial,
the attorney of the defendant requested to withdraw as attorney of record due to a lack of
instructions. This application was granted and the matter proceeded on a default basis.
[4] The plaintiff presented the evidence of two experts , namely Ms. De Klerk, an
occupational therapist , and Dr Strydom, an industrial psychologist, during the trial
together with the evidence of the plaintiff and his wife.
[5] The following medico legal reports filed by the plaintiff were admitted as exhibits in
terms of rule 38(2) of the Rules, namely:
A1& A2 Y De Klerk Occupational Therapist
B1&2 Dr Strydom Industrial Psychologist
C Dr Oelofse Orthopaedic Surgeon
D Dr Labuschagne Neurosurgeon
E Dr. Hoffman Plastic and reconstructive surgeon
F Dr. Grootboom- Clinical Psychologist
G J Sauer - Actuary
H MB Deacon Orthopaedic Surgeon
[6] Mr. Mogotloane, testified that he was involved in a motor -vehicle accident on 17
August 2017, wherein he sustained orthopaedic injuries to his right wrist , right knee,
lower leg and ankle. His medical records revealed that he was 46 years of age at the time
of the accident and he is currently 53 years old.
[7] He indicated that before the accident, he was self -employed and ran several
businesses with an approximate monthly income of R100 000.00 per month. He
conceded that no proof of past earnings was available n or was same provided to his
experts as he did not keep proper records thereof.
[8] Following the accident, he found employment as a property specialist with
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Vodacom which requires him not only to drive long distances, but also to walk around
properties on uneven terrain, which aggravates his physical injuries sustained after the
accident. He also reported that he suffers from frequent headaches and this results in
him spending more time completing his administration work. He also supplements his
income by doing consulting work with another company and will in all probability have to
work beyond the age of 65 years as he did not invest in a retirement plan due to hi m
being self-employed for a number of years . Furthermore, Mrs. Mogotloane also testified
that since the accident, her husband’s personality underwent a change and when he is
under pressure at work , he becomes argumentative and consumes excess amounts of
alcohol.
[9] Ms. De K lerk, an occupational therapist testified that she conducted an interview
with the plaintiff and did a range of physical tests to assess his mobility after the motor
vehicle accident. She also had due regard to his diagnosis as given by the orthopedic
surgeon which was indicated as a united right distal radius fracture of the wrist joint and a
united right tibia fracture with residual knee and ankle pain, atrophy of the calf and ankle
joint and healed facial and ribs fractures.
[10] It was reported to her that his current symptoms include pain in his knee and ankle
when walking or standing for long periods of time, with pain in the lower back when sitting
for long periods, and in his right shoulder when handling weights as well as pain in the
right-hand side wrist with reduced movement. The pain in his leg also increased when
kneeling, bending, climbing stairs and walking on uneven terrain.
[11] She further opined that the plaintiff would be more suitable for light duty in the
sedentary category which would not require a lot of physical activity and movement due
to him experiencing pain, which is aggravated by standing and walking for extended
periods of time. She noted that his current employment is not completely sedentary, but
requires him to driv e long distances and walk on uneven terrain at times. In her report,
she concluded that, and the nature of his work, may require him to retire five years earlier
than the normal retirement age, but deferred loss of income and his earning potential to
an industrial psychologist for calculation.1
[12] Dr. Strydom, an industrial psychologist, intimated that the plaintiff’s career history
1 Exhibit A, Medico legal report compiled by Jani De Klerk, p 166.
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spanned from the years 1992- 2009, working as a waiter in various restaurants with the
last two years thereof as a manager where he earned up to R12 000. 00 per month. The
later part of his career he spent as self-employed running his own companies. Before his
accident, he a reported an income of R100 000.00 per month, but no financial documents
in the form of bank accounts, financial statements or tax documents were provided in
support thereof.
[13] A year after his accident, he managed to secure employment with Vodacom as a
property specialist , despite him only having grade 12 as a qualification. This new
employment commenced from August 2018 where he started earning a nett salary R35
000.00 per month. H is current income w as verified in her updated report with a salary
advice dated 19 January 2024 which is now puts his current nett earnings at R38 359.94
after normal deductions for tax and a retirement fund.
[14] Due to this, she opined that a generic approach would be to have to be applied
and his earnings are to be compared to that of a semi -skilled worker, but she concluded
that this would be an unfair comparison. Furthermore, she indicated that his past loss of
income could not be calculated as no benchmark was provided and, had it not been for
the accident, he may have continued running his business ; his pre-morbid retirement age
may have gone past the normal retirement age of 65 years and may have continued
working to the age of 70 or 75 years of age. Post-morbid, she determined that he thus
has suffered loss of earning capacity due to the injuries that he sustained and his lack of
productivity due to the cognitive disturbances as highlighted by other experts.
[15] She thus indicated that his current earnings should be regards as his future
earnings and in the absence of proof of pre-morbid earnings, it is not possible to
determine the difference between pre- morbid and post morbid earnings on the C1 and
C3 level. She suggested that a higher contingency deduction be implemented to
accommodate fluctuation in earnings, pain and discomfort and should be regarded as
less competitive as he was considered a vulnerable employee in the open labour market.
[16] Dr. Labuschagne, a neurosurgeon, diagnosed the plaintiff’s head injury as a
moderate head injury with neurophysiological and neurocognitive deficits which exerts a
negative impact on his productivity and working ability , as he cannot concentrate. He ,
however, referred the plaintiff for an in-depth neuropsychologist assessment to determine
the full extent thereof.
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[17] Dr Oelofse, an orthopaedic surgeon, indicated that the plaintiff presented with a
united distal radius fracture, united tibia fracture and post traumatic osteoarthritis of the
ankle joint and suffered a total loss of income whilst recovering from his injuries . He
opined that the injuries sustained would result in the plaintiff being on permanent light
duty where work is concerned and underscored the plaintiff’s complaints of sitting and
walking for long periods and that the plaintiff would in all likelihood have to retire five
years early.
[18] Dr Deacon made mention of the very same injuries , but indicated that the plaintiff
presented with multiple rib fractures and a mandible fracture, head injury , splenic rupture
and right mid shaft tibia fracture and non orthopaedic injuries to head and face, chest and
abdomen with a recurring headaches from his head injury.
[19] Ms. Grootboom, a clinical psychologist , opined in her report that her assessment
of the plaintiff indicated that he had mild to moderate neurocognitive and
neuropsychological outcomes and that his memory problems are likely to affect attempts
at acquiring new skills . Furthermore, it would likely reduce his productivity due to
executive functioning deficits associated with frontal lobe impairments from the motor-
vehicle accident, when considering his facial fracture injuries.
[20] Mr. Saucer , an actuary , presented various calculations in his initial report in the
year 2022 and more recently the year 2024. His earlier report included the plaintiff’s
unverified past income of R100 000, with contingencies at 10% / 40% for future earnings
and the 2024 report made provision for future loss of earnings based on basic salary
packages within his skill level in two different scenarios. Firstly, retirement at the ages of
70 and 75 with contingencies of deductions of 5% / 35% and secondly, a normal
retirement age of 65 years with exactly the same contingencies.
[21] I was further referred to relevant case law where contingencies are concerned
namely Southern Insurance Association Ltd v Baily N.O.,
2 Legal Insurance Co Ltd v
Botes,3 Van Plaats v South African Mutual Fire and General Insurance Co. Ltd 4 and
Dlamini v Road Accident Fund.5
2 Southern Insurance Association Ltd v Baily N.O. 1984 (1) SA 98 (A).
3 Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A).
4 Van Plaats v South African Mutual Fire and General Insurance Co. Ltd 1980 (3) SA105 (A).
5 Dlamini v Road Accident Fund [2015] ZAGPPHC 646.
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[22] Counsel for the plaintiff submit ted that given the plaintiff’s age, educational level
and other factors that the contingency deduction should be 5% pre-morbid and 45% post
morbid for a retirement age of 70- 75, as he believed this would be a fair and reasonable
considering the plaintiff’s testimony that he may have to keep working beyond the normal
retirement age of 65 years until he dies.
[23] In Goodall v President Insurance Co Ltd,
6 the court said:
‘In the assessment of a proper allowance for contingencies, arbitrary considerations must
inevitably play a part, for the art or science of foretelling the future, so confidently practiced by
ancient prophets and soothsayers, and by authors of a certain type of almanack, is not numbered
among the qualifications for judicial office.’7
[24] This case highlights the difficulties that judicial officers face when adjudicating
heads of damages . The challenge with the plaintiff’s claim is that there is no amount to
work from where past loss earnings are concerned as the court has just been provided
with an amount which is not substantiated with business financial records during the
years that he was self-employed.
[25] The Supreme Court of Appeal, in RAF v Kerridge,8 faced similar difficulties where
the actual past income could not be provided to the trial court and the consequent award
for damages was found to be incompatible with the evidence led. Ultimately, it was
reduced and higher contingencies were applied by the appeal court. The court stated at
para 44:
‘Some general rules have been established in regard to contingency deductions, one being the
age of a claimant. The younger a claimant, the more time he or she has to fall prey to vicissitudes
and imponderables of life. These are impossible to enumerate but as regards future loss of
earnings they include, inter alia, a downturn in the economy leading to reduction in salary,
retrenchment, unemployment, ill health, death, and the myriad of events that may occur in one’s
everyday life. The longer the remaining working life of a claimant, the more likely the possibility of
an unforeseen event impacting on the assumed trajectory of his or her remaining career. Bearing
this in mind, courts have, in a pre-morbid scenario, generally awarded higher contingencies, the
younger the age of the claimant. This court, in Guedes, relying on Koch’s Quantum Yearbook
2004, found the appropriate pre-morbid contingency for a young man of 26 years was 20 per cent
6 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W).
7 Ibid at 392H-393A.
8 RAF v Kerridge [2018] ZASCA 151 paras 48-49.
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which would decrease on a sliding scale as the claimant got older. This, of course, depends on
the specific circumstances of each case but is a convenient starting point.’
[26] I agree with the approach laid out by the S upreme Court that each case is to
assessed on its own merits and that pre-morbid and post morbid contingenc ies ought to
be applied with a sliding scale with specific regard to the age of the plaintiff and until his
eventual retirement age.
[27] The plaintiff at the time of the accident was 46 years old and suffered injuries that
negatively effects his wrist and right knee and leg together with a mild head injury which
has as per the expert reports reduced his working ability and productivity as he has
neurocognitive disturbances coupled with post-traumatic stress. This resulted in him
closing his business as he could not cope with its demands.
[28] Although it is not known what his exact loss is as far as past loss of income is
concerned, I am of the view that with his residual injuries of the wrist and right leg and
neurocognitive disturbances, he has made out a case for loss of earning capacity as he
was no longer capable of running his own business and, in all like lihood, will not get a
promotion due to his inability to concentrate and retain memory. This aspect was also
covered in the industrial psychologist report wherein it was indicated by his employer that
his work is not on par with his work place standard and, thus he can be classified as an
unequal competitor in the labour market.
[29] Though it was contended by counsel that the plaintiff does not have a pension
fund to fall back on, he would have to work beyond the retirement age of 65 years as he
did not build up a provident fund whilst he was self-employed. This is not accurate, as the
report by the industrial psychologist reveals that the retirement age at Vodacom is 65
years. The plaintiff’s recent salary advice also shows that since his employment with
Vodacom, he is contributing to a retirement fund and is likely, given his current age, more
that 10 years away from retirement.
[30] Though I am satisfied that higher contingencies ought to be applied, I am of the
view that it would be reasonable and just to apply contingencies of 5% pre -morbid and
35% post-morbid as this is in line with the plaintiff’s age and reduced earning capacity.
The updated actuarial calculations by Sauer also makes provision for these
contingencies and takes into consideration the applicable RAF cap to be deducted, which
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is an amount of
R2 679 022.00 for his loss of income. This would accordingly be calculated as follows:
Pre-morbid: Retire at age 65
[31] It is trite that costs follow the result and I am inclined to order that the defendant
pays the costs.
[32] Accordingly, it is ordered that:
1. The Defendant shall pay the Plaintiff the sum of R 2 679 022.00 in respect of loss
of earning capacity.
2. Interest on the aforesaid amount at the prescribed rate of interest of 10.75% (at
the mora rate above the repo rate on the date of this order as per the Prescribed rate of
Interest Act 55 of 1975 as amended) calculated from the date of this order to date of
payment.
3. The defendant shall pay this amount into the Plaintiff’s Attorney ’s trust account
with details:
ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[…]
Pre-morbid Post- morbid Loss (Difference)
Future earnings 6 333 392 4 488 246
Minus contingencies
deductions of (5%/
35%)
- 316 665 - 1 570 886
Future loss of earnings 6 016 627 2 917 360 3 099 267
Total loss of earnings 3 099 267
Minus effect of RAF
cap
420 245
Total loss of earnings
after RAF cap
2 679 022
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REFERENCE: MAT 1127737
4. The defendant shall pay the Plaintiff’s taxed or agreed party and party costs up to
and including the trial date of 4 June 2024 which costs shall include:
4.1 Counsel fees on Scale B
4.2 The reasonable qualifying and reservation and appearance fees of the plaintiff’s
experts and their reports;
4.2.1 Ms. Y De Klerk - Occupational Therapist
4.2.2 Dr AC Strydom – Industrial Psychologist
4.3 The reservation fees of the following experts
4.3.1 Dr. LF Oelofse & Deacon - Orthopedic Surgeon
4.3.2 Dr. JJ Labuschagne - Neurologist
4.3.3 Dr. Grootboom - Clinical Psychologist
4.3.4 Dr. Hoffman - Plastic and Reconstructive Surgeon
4.3.5 Mr. Sauer - Actuary
5. In the event of default of the payment, interest shall accrue at the prescribed rate
of interes t (at the mora rate above the repo rate on the date of this order as per the
Prescribed rate of Interest Act 55 of 1975 as amended) per annum from the due date to
date of payment.
MAJOSI AJ
Appearances
For the Appellant: Mr. D. J. Marx
Instructed by: VZLR Incorporated
C/O Du Plooy Attorneys
Bloemfontein
For the Respondent: No appearance
Instructed by: