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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
JACOBUS JOHANNES MARITZ
And
THE ROAD ACCIDENT FUND
Not Reportable / Reportable
Appeal No: A87/2023
Court a quo Case No: 57 46/2015
APPELLANT
RESPONDENT
Neutral citation: Jacobus Johannes Maritz v The Road Accident Fund (A87/2023)
Coram: Chesiwe, et Daniso, JJ, Ramdeyal, AJ
Heard: 16 September 2024
Delivered: 06 December 2024
Summary: Claim for future loss of earnings-plaintiff must adduce evidence
which proves a physical disability resulting in a loss of earning
capacity including the actual loss-in assessing damages, the
court is not expected to adopt a cavalier approach and accept
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expert medical opinions solely on the grounds that they are
uncontentious-principle restated.
ORDER
The appeal is dismissed.
JUDGMENT
Daniso, J (Chesiwe, J et Ramdeyal, AJ concurring)
[1] This is an unopposed appeal against the whole judgment and order handed
down by Molitsoane J on 7 March 2023 dismissing the appellant's claim for future loss
of earnings with costs.
[2] The judgment emanates from an action instituted by the appellant against the
respondent under various heads including: loss of earnings, future medical expenses
and general damages arising from injuries he sustained when the vehicle he was
driving collided with a motor vehicle driven by Mr. Poka Richard Lekhu on 26 August
2012.
[3] It was common cause that, at the time of the accident, the appellant was 36
years old. He was employed at Transnet as a welder. He resumed his employment in
the same position post-accident. Two days after the accident, he experienced
persisting neck pain which resulted in him driving himself to hospital where X-Rays
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were performed. However, no abnormalities were evident as a result, he was
discharged on the same day with pain medication for muscle spasms of the cervical
spine. The neck pain and headaches persisted for at least a month with the result that
he consulted his doctor on various occasions and also underwent more X-Rays, which
repeatedly revealed no abnormalities.
[4] Subsequent to defending the action, the respondent conceded the merits 100%
of the plaintiff's proven or agreed damages and undertook to furnish the appellant with
the statutory undertaking for future medical expenses as provided for ins 17(4)(a) of
the Road Accident Fund Act1 (the Act) whilst the appellant withdrew his claim for
general damages upon the findings by the Appeal Tribunal (the Tribunal) that his
reported neck injury was not serious as predicated in Regulation 3(1 )(a) of the Road
Accident Fund Regulations, 2008,2 as it w as simply a typical whiplash with no
significant long-term, life-altering consequences. The only issue that remained to be
adjudicated by the court a quo was the claim for loss of earnings.
[5] In the court a quo, the parties agreed that no oral evidence was to be led by
either party. By agreement, the appellant submitted his expert reports together with
affidavits which included reports by the general practitioner Dr JJ Schutte, orthopaedic
surgeon Dr Oelofse, occupational therapist Ms Carien Sm it, industrial psychologist Dr
EJ Jacobs and actuaries Munro Actuaries, in his quest to prove his claim. The
respondent handed in a letter from the Health Professions Council of South Africa (the
HPCSA) incorporating the findings of the Appeal Tribunal regarding the assessment
of the appellant's reported neck injury.
[6] The experts diagnosed the appellant's neck injury as a cervical spine injury
(C6/C7 disc lesion). According to the experts, as a result of the sequelae of the injury
namely, chronic headaches, muscle spasm , constant neck pain and mild to advanced
spondylosis, the appellant's productivity and working ability as a w elder has been
curtailed. Three months after the accident, he also started experiencing knee pain
wh ich is also attributable to bumping his knee against the dashboard at the time of the
1 Act No , 56 of 1996 (as amended) .
2 See record volume 2 page 261 to 264.
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accident. The neck pain is aggravated when he is looking up for a prolonged period or
by working with his hands above his head. The knee pain increases when he kneels
while doing his welding duties or even walking for long periods. As a result, the
appellant must be accommodated in light sedentary duties, and he will likely be able
to work until the retirement age of 60. If not, he will retire earlier. Furthermore, the
applicant might require a spinal fusion in the future, therefore, he has become an unfair
competitor in the job market. He must, accordingly, be compensated for future loss of
income in the amount of R2 370 700.00.
[7] On the other side, relying on the Tribunal's report, the respondent was adamant
that the injury relied upon by the appellant as the basis of his claim was found to be a
non-serious injury, but a typical whiplash which had no significant long-term, life
altering consequences. This fact was also confirmed by the Magnetic Resonance
Imaging (MRI) scan which diagnosed the neck injury as a mild or early spondylosis at
C6/C7, consistent with whiplash and not the C6/C7 disc lesion as proffered by the
appellant's experts. The series of X-Rays underwent by the appellant also did not
reveal any abnormalities to the spine and the respondent contends that if the appellant
were to undergo surgery in the future, it would be due to age-related spondylosis and
not as a result of the sequelae of the accident injury. Ten years post the accident, the
appellant is still employed in the same position with salary increases since then. The
appellant is still able to work therefore, he is not entitled to a total loss but a reduced
capacity compensation in the amount of R634 640.00.
[8] In arriving at its conclusion that the appellant failed to prove his entitlement to
the damages he sought, the court a quo held that the assessment of the appellant's
damages was based on incorrect facts in that the admitted expert reports regarding
the nature and severity, including the sequelae of the appellant's reported neck injury,
was gainsaid by the Appeal Tribunal's findings of non-serious injury which were not
reviewed and set aside, including the MRI scan which diagnosed the neck injury as a
mild whiplash.
[9] The appellant is aggrieved by the court a quo 's findings. I will not repeat the
appellant's grounds of appeal as embodied in the appellant's notice of appeal
verbatim, except to point out that they are essentially directed at the court a quo's
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reasons for dismissing the appellant's claim and for 'intervening inappropriately in the
proceedings' by raising the issue of lack of evidence to sustain the claim, whereas the
contents of the appellant's expert reports alluding to that fact were not disputed.
[1 0] It is the appellant's case that in determining the appellant's claim for loss of
earnings, the court a quo incorrectly applied the test applicable to general damages
by taking into consideration the Appeal Tribunal's findings that the appellant's injury
was non-serious and thereafter reasoned that the appellant was disentitled to the
damages he sought. The findings of the Appeal Tribunal were irrelevant for the
determination of the appellant's claim as his claim for general damages was
abandoned. The appellant further states that the court a quo erred by rejecting the
medical opinions rendered in the appellant's expert reports regarding the nature of the
injury sustained by the appellant on the grounds that they were flawed, as the reports
were handed in by agreement between the parties, their contents were not disputed
or gainsaid by evidence to the contrary. Instead, the fact that injury sustained by the
appellant has reduced his earning capacity was admitted by the respondent with the
result that the respondent offered a reduced amount of R634 640.00. Accordingly, the
order of the court a quo must be set aside and replaced with an order in favour of the
appellant in the amount of R2 370 700.00 together with interest and costs.
[11] The court a quo's reasoning for classifying the appellant's claim as one
resorting under general damages is contained in para 15 of the court a quo's judgment.
It is tested law that an appeal does not lie against reasons for an order or decision,
but rather against the substantive order itself.3 That aside, having regard to the manner
in which the court a quo meticulously evaluated the evidence upon which the appellant
relied in his quest to prove his claim, the court a quo was alive to the fact that the
species of the appellant's claim involved the assessment of damages arising from
future loss earnings occasioned by the injury he sustained in the accident.
3 Western Johannesburg Rent Board and another v Ursula Mansions (Ply) Ltd 1948 (3) SA 353 (A) at
355; SA Metal Group (Proprietary) Limited v International Trade Administration Commission & Another
(2017) ZASCA 14 para 15.
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[12] The onus is on the appellant to prove that the injury he sustained in the accident
has resulted in a disability which in turn has resulted in a loss of his patrimony on a
balance of probabilities.
[13] It is clear from what is deliberated in paras 16 to 20 of the court a quo's
judgment that in arriving at the conclusion that the appellant failed to discharge that
onus the court a quo took into account that the medical opinions of the appellant's
experts regarding the nature and sequalae of the appellant's injury were also gainsaid
by the medical diagnostic tools, notably the MRI scan which classified the injury as a
minor whiplash as opposed to the incapacitating C6/C7 disc lesion proffered by the
experts. (Record volume 1 page 142 to 144).
[14] In support of its findings the court a quo made reference to Corbett's Quantum
of Damages4 and quoted the following: '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 ... '
[15] I cannot fault the court a quo's findings in this regard. This line of reasoning has
also been endorsed by the Supreme Court of Appeal in Road Accident Fund v
Kerridge5 (Kerridge) where it was pointed out that the assessment of the amount to be
awarded as damages only arises after a claimant has proffered sufficient evidence to
prove the alleged loss of income. This principle was also enunciated in Rudman v
Road Accident Func/3 where the court held that there must be evidence that due to
the nature of the injury sustained by the appellant, his capacity to perform his duties
has been impacted with the result that his earning capacity has been diminished.
[16] It is a fallacy that a court is not at liberty to either accept or reject the evidence
proffered in the expert reports where they have been handed in by agreement and the
contents have been admitted or not disputed. In Kerridge the Court made it clear at
para 50 that:
4 Quantum of Damages , Vol 1 Corbett 4th ed, Gauntlett at 30.
5 Road Accident Fund v Kerridge 2019 (2) SA 233 (SCA).
6 Rudman v Road Accident Fund 2003 (SA) 234 (SCA).
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'The role of experts in matters such as these and the opinions they provided could only be as
reliable as the facts on which they relied for this information. Too readily, our courts tend to
accept the assumptions and figures provided by expert witnesses in personal injury matters
without demur. The facts upon which experts rely could only be determined by the judicial
officer concerned. An expert could not usurp the function of the judicial officer, who was not
permitted to abdicate this responsibility-the court should actively evaluate the evidence.'
[17] I am also in agreement with the court a quo's rejection of the expert medical
opinions on the grounds that the assessment upon which they are based is flawed. In
the oft cited English decision of R v Turner7 it was held that:
'Before a court can assess the value of an opinion it must know the facts upon which it is
based. If the expert has been misinformed about the facts or has taken irrelevant facts into
consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.'
[18] It is also important to point out that the fact that the injury sustained by the
appellant has reduced his earning capacity on its own, does not entitle the appellant
to be awarded the damages he sought. There must be proof that the reduction in his
earning capacity indeed gave rise to a pecuniary loss.8 On the facts germane to this
matter there was no loss as post-accident, the appellant is still employed in the same
position with the same salary including salary increases. In the circumstances this
appeal stands to be dismissed.
ORDER
[19] In the light of the above, I propose the following order:
1. The appeal is dismissed.
7 R v Turner [19751 1 All ER 70.
8 Footnote 6 at para 11.
I concur
I concur
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The Honourable Justice
2024 -12-,o 6
~ f}~f.
T RAMDEYAL AJ
Appearances
Counsel for appellant:
Instructed by:
Counsel for respondent:
Instructed by:
Adv. PJJ Zietsman S.C
Honey Attorneys
BLOEMFONTEIN
No appearance by the respondent.
BLOEMFONTEIN
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