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
GAUTENG DIVISION, PRETORIA
Case No: 20634/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : NO
DATE: 12/03/25
SIGNATURE:
In the matter between:
DINEO JOYCE MATSIETSO PLAINTIFF
AND
ROAD ACCIDENT FUND DEFENDANT
Summary - third party claim against Road Accident Fund (“RAF”) - claim for
loss of earning capacity against RAF – injuries sustained left ankle injury and
soft tissue injury to the lower back.
JUDGMENT
NYANDENI AJ:
INTRODUCTION
[1] On 16 October 2024 the Court heard an unopposed trial of the above -
mentioned parties. There were no papers filed on behalf of the defendant and there
was no appearance on behalf of the defendant. The plaintiff made an application in
terms of rule 38(2) of the Uniform Rules of Court which was granted.
[2] The plaintiff sustained bodily injuries in a motor accident whilst being a
passenger of the insured vehicle. The court has to determine whether the defendant
can be held liable for these injuries.
[3] The issue of merits was granted 100% in favour of the plaintiff as she was
able to prove a percent negl igence by the insured driver. The issue of general
damages was postponed sine die. The head of damages left to be determined by the
Court was the loss of earning capa city by the plaintiff. The plaintiff conceded that
there was no past loss of earning capacity and only future loss of earning capacity is
to be determined by the Court.
FACTS OF THE MATTER
[4] On 3 May 2015, at approximately 14:30 , between Vryburg and Scherzer -
Reneke, a collision occurred between a motor vehicle with registration numbers and
letters H[...] (hereinafter referred to as “the insured vehicle”) there and then driven by
Modise Mnane and a motor vehicle bearing registration numbers and letters B[...],
there and then driven by Itumeleng Isaac Puso at all material times the Plaintiff was
a passenger at the time of the accident.
[5] The plaintiff was born on 2 September 1981 and was 43 years at the time of
the hearing. She resides in Potchefstroom and was employed at the North West
University at the time of the collision. As a result of the accident, the plaintiff
sustained injuries which resulted in a left ancle fracture and soft tissue injuries. After
the accident she was admitted to Joe Morolong Hospital.
[6] She was employed1 at the time of t he accident by the North West University.
Seven weeks after the accident she returned to work. She is currently working in the
same capacity as before the accident . She used to drive a lot before the accident
and now she is office bound due to the accident , in the same capacity as a n
Administrator She is expected to retire at the normal retirement age.
[7] The Plaintiff completed grade 12 in 1999 and obtained a BCom degree in
Industrial Psychology a nd Labour Relations in 2014 and a Post Graduate Diploma in
Public Management in 2017
ISSUES
[8] The crisp issue to be determined by the Court is whether the defendant is
liable for plaintiff’s future loss of earning capacity as a result of the bodily injuries
sustained in the motor accident.
[9] The injuries sustained are so ft tissue injury to the lower back and a left ankle
fracture.
THE PLAINTIFF’S CASE
[10] The plaintiff relied on the expert report of the orthopaedic surgent Dr Imran
Ahmad Khan to prove the injuries she sustained in the accident and that such
injuries have long term impairments or loss of body function, with a WPI of 8%.
1 Orthopedic Surgent report para 3.
[11] The second expert the plaintiff relie d on is that of the occupational therapist o f
Ndzungu and Associates . They confirm the injuries and sequelae thereon. They
state that the plaintiff’s optimal occupational functioning has been diminished. She
will no longer be able to compete in the same light as her abled bodies competitors.
She can only do sedentary work and light occupation. Her physical challenges and
psychological deficit render her a vulnerable contender in the open labour market .
Post-accident she continues to experience the lower limb limitations and she is now
a sympathetic employee.
[12] The third expert the plaintiff relied on is the clinical psychologist , Mr Itumeleng
Faku. The expert stated that the plaintiff experienced no changes or decline to her
neuropsychological functioning. There is a significant change in her physical health
and psychological functioning which has a significant impact on her self-image . The
noted distress is associated with the impact and changes in her physical wellbeing
which is pain and discomfort, change in self-image , anxiety related symptoms which
stem from the physical limitation which make s her to feel vulnerable and fearful of
what the future will be like. She has symptoms of depression, anxiety and personality
vulnerabilities .
[13] The fourth expert is that of an industrial psychologi st, Mr Tshepo Kalanko. He
stated that the plaintiff may remain in her current employment notwithstanding the
continuous effects of the accident -related injuries. Her work capacity may have been
diminished due to the residual impairments of the injuries emanating from t he
accident. She has become a vulnerable competitor in the open labour market and
she will not be able to compete with her healthier uninjured peers in the open labour
market.
[14] The plaintiff’s future earning capacity is curtailed as she remains with residual
impairments emanating from the injuries sustained in the accident. She was
rendered a vulnerable employee who relied on the employer for accommodative
employment on the noted sequelae. It is also unlikely that she will reach her pre -
accident caree r potential and her career progression may be hindered following the
accident in question.
[15] The fifth expert the p laintiff relied on is DT Mureriwa who is a consulting
actuary at One Pangaea Actuaries which gave a report with the following actuarial
calcula tions: -
Contingencies
Past loss of income pre accident post-accident
5% 5%
Future loss of income pre accident post-accident
15% 25%
Loss of income
Past loss of income
Pre-accident R 1 794 009 -00 Post-accident R 1 183 110 -00
Less 5% = R 89 700 -00 Less 5% = R 59 156 -00
Total = R 1 704 309 -00 Total = R 1 123 954 -00
Grand total of past loss of income is R 580 355 -00
Future loss of income
Pre-accident R 6 061 499 -00 Post-accident R 3 2 20 160 -00
Less 15% = R 909 225 -00 Less 25% = R 805 040 -00
Total = R 5 152 274 -00 Total = R 2 415 120 -00
Grand total of future loss of income is R 2 737 154 -00
[16] The overall total amount for past and future loss of income is R 3 317 509-00,
claimed in the Rule 38(2) of the Uniform Rules of the High Court. The Plaintiffs
claim in the particulars of claim is R 900 000 -00. The plaintiffs failed to file the
notice of amendment and amended Particulars of Claim . The was no
application for c ondonation for none compliance from the plaintiff, the Court is
prepared to look at the matter holistically and give an appropriate decision.
CASE LAW ON THE DISCRETION OF THE COURT ON CONTINGENCY
APPLICATION
General principles and discretion of the court in application of contingency
[17] The learned author Dr R.J. Koch in The Quantum of Damages Year Book
states at page 118 that the usual contingencies which the Road Accident Fund
accepts is 5 % on the past income and 15 % on the future income. The afores aid is
only a guideline, but it indicates the general approach adopted by the defendant in
similar matters. The learned author continues on page 118 to suggest (based upon
the authorities of Goodall v President Insurance2 and Southern Insurance
Associati on v Bailey N.O .3 , that as a general rule of thumb, a sliding scale can be
applied, i.e., “1/2% per year to retirement age, i.e., 25% for a child, 20% for a youth
and 10% in middle age.”
[18] In the case of Road Accident Fund v Guedes4 the court referred with approval
to The Quantum Yearbook , by the learned author Dr R.J. Koch, under the heading
'General Contingencies ', where it states that: -
[19] “[when] assessing damages for loss of earnings or support, it is usual for a
deduction to be m ade for general contingencies for which no explicit allowance has
been made in the actuarial calculation. The deduction is the prerogative of the
Court ...” The percentage of the contingency deduction depends upon a number of
factors and ranges between 5% and 50%, depending upon the facts of the case.
(See AA Mutual Association Ltd v Maqula 1978(1) SA 805 (A) 812, De Jongh v
Gunther 1975(4) SA 78 (W) 81, 83, 84D, Goodall (supra ), and Van der Plaats v SA
Mutual Fire & General Insurance Co Ltd 1980(3) SA 105(A) 114 -115A -D).
[20] The advantage of applying actuarial calculations to assist in this task was
emphasi sed in the leading case of Southern Insurance v Bailey5 at page 113H -114,
where the Court stated;
“Any enquiry into damages for loss of earning capacity is of its nature
speculative because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the Court can
do is to make an estimate, which is often a very rough estimate, of the present
2 1978 (1) SA 389 (W).
3 1984 (1) SA 98 (AD)
4 2006 (5) SA 583 (SCA) at para [9].
5 1984 (1) SA 98 (A) .
value of the loss. It has open to it two possible approaches. One is for the
Judge to make a round estimate of an amount which seems to him to be fair
and reasonable. That is entirely a matter of guesswork, a blind plunge into the
unknown. The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence . The validity
of this approach depends of course u pon the soundness of the assumptions,
and these may vary from the strongly probable to the speculative. It is
manifest that either approach involves guesswork to a greater or lesser
extent.”
[21] The Court has a large discretion to award what it considers right . Some of the
factors that influence this discretion would be the possibility that the plaintiff may
have less than a "normal" expectation of life. The amount of any discount may vary,
depending upon the circumstances of the case.6
CONSIDERATION OF THE PLAINTIFF ’S CASE
[22] In considering the matter the Court had consideration of the submissions
made by Mr Zuma and his heads of argument together with all expert reports filed in
the matter.
[23] The expert report of Clinical Psychologist Dr Itumeleng Faku states t hat the
plaintiff ’s educational level is that she completed grade 12 in 1999, she completed
BCom in Industrial Psychology a Labour Relations in 2014 and has a diploma which
was obtained in 2017.
[24] She is not married and has two dependents. She is complaining of a chronic
pain from her left ankle, she is unable to drive the long distance and suffering from
the pain in her lower back. There is moderate swelling on the left ankle injury. She
was not participating in any hobbies. Her mobility has been affected as she can no
longer walk or and for a long period of time.
6 Southern Insurance Association v Bailey N.O . 1984 (1) SA 98 (AD) at 116G -H.
[25] Her total impairment capacity is 8%, but she has a long -term impairment
emanating from the left ankle injury, her life expectancy has not been affected.
Prognosis is that there are no neurological c hanges in her lower back and left ankle
after 9 years after the accident. She is expected to do well in future after
rehabilitation and conservative treatment.
[26] She will need rehabilitation, medication, consultation s with a general
practitioner , future Xray and MRI scan will be needed for lumber spine and left ankle
injury. An amount of R 50 000 -00 should be reserved for such a treatment. Future
ankle surgery is expected to find intra articular pathology on the chronic left ankle
pain. The amount of R 70 000 -00 should be reserved for such procedure.
ON CLINICAL PSYCHOLOGY ASSESMENT
Background Information
[27] She was 41 years old at the time of the assessment, she has two children
who are staying with her and her partner at Potchefstroom. She has no previous
medical condition or illness and she was never hospitali sed or psychiatric diagnose d.
[28] Her educational history is that sh e did her grade 1 -7 at Ganyetsa Primary
School and grade 8 -12 at Hunadi High School. She enrolled for a degree in Industrial
Psychology and a post graduate diploma in Public Administration at North West
University.
[29] She complains of the following difficult ies post the accident: -
(a) She experiences changes and decline in her physical strength
and abilities - with pain and discomfort on the left lower back,
especially when driving, walking or sitting for a prolonged
period of time. During the cold climate; she uses lumber
support to her lower back when sitting on a chair.
(b) She reported that her left leg was swollen, it gets numb. Before
the accident s he wore a size 5 shoe on the left leg and now she
wears a size 6 . She is now limited post the accident and is no
longer able to go to the gym .
(c) She is emotionally vulnerable, irritable, anxious when having to
travel since the accident. She is fearful about her future
employment - anxious when coming to the issue of retire ment.
(d) Effect on employment is that she will be able to perform light
heavy duties in future and will not be an equal competitor in
open market particularly due to left ankle sprain and swelling
that is continuously causing her pain.
(e) Prognosis are that no r adiological changes in her lower back
and left ankle even seven years after the accident. She is
expected to do well after future rehabilitation and conservative
treatment but the left ankle pain will persist.
(f) She has a long -term impairment because of the accident .
MENTAL EXAMINATION
[30] She was 41 years old, Setswana and English -speaking female at the time of
the assessment.
[31] The attitude towards the examiner was that she was co -operative and willing
to do the tasks during the assessment. She was well orien tated to time, place and
person. Her mood affect was euthymic, affect reactive and appropriate to context.
Her psychological behavio ur was observed to have no psych -motor difficulties.
[32] Her concentration and attention were noted to be adequate to context. H er
speech was noted to be normal toned voice and was fluent.
[33] After the clinical interview the following was noted: -
[34] She was irritable, she was anxious when traveling in a speeding car,
experience flashbacks or complained of nightmares in relation to the accident. She
has been withdrawn or detached from others. She avoids talking about the accident,
still up and cries when thinking about it. She has no self -blame and no suicidal idea
or thought of death.
[35] She reported changes in self -concept or self -esteem. She has less interest in
previously enjoyed activities. She experienced no change in memory and
concentration abilities since the accident. She has normal sleeping patterns. She has
normal appetite and less energy levels. She finds it more difficult to ma ke a decision
than usual.
[36] She reported no visual and auditory hallucination, no delusions and none
were observed or reported during assessment. She reported no seizures and no
blackouts, no dizziness, no déjà vu and no jamais vu .
[37] Based on the above -describ ed symptoms, it can be inferred that the plaintiff
suffers from the symptoms of depression and anxiety with related symptoms.
NEUROPSYCHOLOGICAL ASSESMENT
[38] She was subjected to a range of neuro -psychological assessment s or test s
which covers a wide spectrum of cognitive functions including attention and
concentration, memory and learning, Visio-construction ability, reasoning and
concept formation planning ability and verbal fluency ability.
[39] The Plaintiff underwent a selected subtest from Wechler Adult Intel ligence
Scale (WAIS III) and supplementary neuropsychological tests.
[40] The neuropsychological tests conducted are currently utilised in various
clinical settings. These tests were developed abroad and as such, norms for the
South African diverse population m ay not be available. Therefore , in this context of
the current neuropsychological tests, the results are considered together with
qualitative data with specific emphasi s on educational, language difference and
culture. Test result s are viewed as providing quantitative guidelines based on the
effects of injury or neurocognitive functioning with underpinning of scientific approach
whilst recogni sing that there are some limitations inherent in use of such tests.
[41] The test administered: -
(a) Ray Auditory Verbal Learning Test (RAVLT),
(b) Trail making A and B test,
(c) Similarities,
(d) Pattern completion,
(e) Comprehension,
(f) Ray complex figure test (RCF),
(g) Mental control,
(h) Digital Symbol Coding (DSC),
(i) Ray fifteen item,
(j) Digital Span
(k) Mazes,
(l) Letter number sequencing,
(m)Picture completion,
(n) Draw a clock / clock
DISCUSSION OF TESTS SCORES AND FINDINGS
[42] A neuropsychological assessment was undertaken to establish the nature and
severity of any functional, cognitive impairments and how this may imp act on the
plaintiff’s ability to function personally and occupationally. Through
neuropsychological assessment on her cognitive ability revealed the following: -
ATTENTION CONCENTRATION
[43] Mental tracking and working memory were assessed by means of the test e’s
abilities to select a particular stimulus and exclude others, her ability to maintain the
attention over an extended period of time and attentively following and tracking a
stimulus in the face of competing stimulus. Further working memory refers to th e
ability to hold and manipulate information.
[44] The plaintiff demonstrated well maintained ability to mentally track, process
and scan information during her performance. This suggest s that the attention and
concentration (alertness, orientation and selectio n) was intact.
[45] She further demonstrated well sustained immediate attention, visual and
auditory through ( digit symbol search and Rey complex figure).
[46] She also demonstrated good mental processing of complex arithmetic and
sequencing (through the letter and number sequencing) .
MEMORY LEARNING
[47] A comprehensive assessment of memory functioning is important as this
tends to be an area of specific complains in clinical practice .
[48] The plaintiff demonstrated well-adjusted mental processing as well as brief
storage an d mental manipulation of information. She demonstrated a good ability to
retain and retriev e information as intact.
[49] This was noted consistently with her verbal memory as noted on the RAVLT
and nonverbal memory (visual) on the RCF which showed not to impact on her
overall memory and daily adjustments.
VISIO -MOTOR ABILITIES
[50] These abilities involving visual perception, visual motor co -ordination and
constructional abilities were measured on the following tests: -
[51] The plaintiff’s visual perception, visual motor co -ordination and constructional
abilities were observed to be largely intact. She demonstrated well intact with
scanning, visual -motor and double tracking of complex stimuli.
[52] This suggest s that her drawing on the copy (Draw a clock) were normal,
numbers in appropriately correct position. Hour and minute hand district and placed
correctly. She demonstrated intact visual spatial and constructional abilities.
EXECUTIVE FUNCTIONING
[53] Executive functioning refers to the cognitive abilities necessary for complex
goal directed behavio ur and adaptation to a range of environment al changes and
demands.
[54] The plaintiff demonstrated well sustained ability to plan, initiate and maintain a
purposeful action. She demonstrated a well-maintained attention, mental tracking
and visual search as well as sequencing and mental flexibility.
[55] She demonstrated well sustained attention with short - and long -term memory
of visual and auditory stimuli. The plaintiff’s cognitive abilities with a complex goal
directed behaviours and adaptation to a range of environmental charges and
demands was observed t o be intact. She demonstrated significant cognitive ability to
adjust to her current situation.
EMOTIONAL FUNCTIONING
[56] During the interviews and on the Beck Depression Inventory - found her to
have significant mood indicators or internal conflicts. On the se lf-report scale, she
was noted to be emotionally vulnerable due to the changes in her physical abilities.
The noted emotional vulnerable is due to the changes in her physical abilities. The
noted emotional distress is associated with the impact and change of full physical
control. She has experienced symptoms of grief i.e., unable to enjoy things that she
previously enjoyed/ participated in and change in self -concept. She has been
experiencing nightmares, fear when traveling in a speeding vehicle and has be en
short tempered.
MALINGARING
[57] A malingering test was administered to the plaintiff in order to establish the
validity of the test results. The plaintiff ’s score suggested her test result could be
regarded as valid .
FINDINGS
PRE-ACCIDENT FUNCTIONING
[58] The p laintiff presented with history of any development complications as it
seemed that the plaintiff did not present any history of development complications .
She completed grade 12, obtained a degree in an industrial psychology, and a post
graduate diploma in public administration.
[59] She has not been diagnosed or treated for a psychiatric disorder prior to the
accident. She presented with behavioural difficulties.
CONCLUSION
[60] The neuro -physical assessment suggest that the plaintiff experienced no
changes or decli ne to her neuropsychological functioning. In this context the
plaintiff’s difficulties are primary attributed to the physical injuries sustained from the
accident.
[61] The above mentioned concur similarity, the orthopaedic Surgeon found that
the plaintiff sust ained injuries as mentioned above and he prognosed that there are
no radiological changes in her lower back and left ankle even seven years after the
accident. She is expected to do well after future rehabilitation and conservative
treatment but left ankle pain will continue to persist.
[62] The occupational therapist stated above that the plaintiff s complain about
headaches, pain on the left ankle associated with the ambulation and physical
activity, lower back pains, decreased vision, decreased standing and w alking
endurance, unable to lift and carrying heavy objects due to pain on left side.
Functional she struggles to stand and walk long distance due to left ankle and lower
back pain; she has difficulty lifting and carrying heavy objects due to left ankle an d
low back pain, difficulty lifting and carrying heavy object due to pain and left ankle.
She struggles to conduct home maintenance tasks include cleaning due injuries
related limitations and she now experience occupational barriers. An inability to cope
with the constant physical demands for the duration of working day. Due to the
reduced physical endurance and left lower limb pain and impairments. Inability to
cope with tasks requiring squatting or crouching, slow working pace and challenges
to handle or lift heavy object.
[63] On the other level the plaintiff was found to have a significant change in her
physical health and psychological functioning which seem to negatively impact of the
self-image. The noted emotional distress is associated with the impact an d changes
or decline on her physical wellbeing (physical pain and discomfort), change in self -
image, anxiety related symptoms, resulting in physical limitations and that makes her
to feel vulnerable and fearful of what the future will be like. In agreement with the
orthopaedic surgeon’s post injury report , the plaintiff will be able to perform light
heavy duties in future and will not be able an equal competition in open market
particularly due to ankle sprain. She was foun d to present with significant symptoms
of depression, anxiety and was observed to have some personality vulnerabilities.
She would benefit from seeing a clinical psychologist for psychotherapy. In this
context, the noted distress was found to meet a DSMV V diagnosis.
[64] Based on the information obtained and psychological assessment, the plaintiff
has sustained significant injuries on the day of the accident. The neuropsychological
assessment suggest that the plaintiff experienced no changes to her
neuropsychol ogical functioning.
[65] The noted difficulties attributed primarily to the accident in the form of physical
changes seem to impact negatively on her daily existence, on social and
occupational platforms. The occupational therapist suggest that the plaintif f is
expected to struggle with work requiring her to have adequate mobility and positional
tolerance skills which has been compromised post the accident due to injury related
limitations. Furthermore, she will therefore, be considered an unequal competitor and
a vulnerable employee in a highly competitive open labo ur market when compared to
her colleagues with the same experience and qualification.
ORTHOPAEDIC SURGENT
[66] The orthopaedic surgent, Dr Imran Ahmad Khan, was called to prove the
injuries the plaintiff sustained in the accident and that such injuries have long term
impairments or loss of body function, with a WPI of 8%.
[67] She will need rehabilitation, medication, consultation s with a general
practitioner , future Xray and MRI scan s will be needed for lumber spine and left
ankle injury. An amount of R50 000 -00 should be reserved for such a treatment.
Future ankle surgery is expected to find intra articular pathology on the chronic left
ankle pain. The amount of R70 000 -00 should be reserved for such procedure.
OCCUPATIONAL THERAPIST
[68] According to the Occupational therapist Dr N Ndzungu, the plaintiff sustained
a soft tissue injury at the lower back .
[69] Accident -related main complaint and impact on functioning, physical activity
(headaches, pain in the left ankle associated with ambulation and physical activities);
lower back pain, decreased vision, decreased standing and walking endurance,
unable to lift / carry heavy objects due to pain in the left ankle, she struggles to
conduct home maintenance t asks including cleaning due to injuries related
limitations.
[70] The plaintiff is unable to cope with constant physical demands for the duration
of a working day, due to reduced physical endurance and left lower limb pain
impairment, in ability to cope with ta sks requiring squatting or crouching slow
working pace and challenges to handle or lift heavy objects.
[71] Effect on employment is that she is expected to struggle with work requiring
her to have adequate mobility and positional tolerance skills which have bee n
compromised post -accident due to injury related limitations. Furthermore, she would
therefore, be considered an unequal competitor and a vulnerable employee in a
highly competitive open labour market when compared to her colleagues with the
same experien ce and qualifications .
INDUSTRIAL PSYCHOLOGIST REPORT
[72] At the time of the accident the plaintiff was employed as a senior
administrative assistant earning R 17 000 per month (R 204 000-00 per annum in
2015) .
[73] The industrial psycholog ist recommends on the use of the average of the
median on upper quartile of person B3 for the calculation purpose (R 194 500 per
annum total package Kock 2015.
[74] Scenario 1 remain in her pre - existing employment or similar occupations :
• by the age of 47 years her earnings would have increased, assumed
linearly to the average of the 50th and 75th percent for administrative
secretaries ( R419 562,50 per annum, 27 centuries Analytic, January
2022) ;
• thereafter salary inflationary increases until retirement age of 65 years ;
• Scenario 2 sec ured better employment . She would have secured
alternative employment, assumed in March 2016 earning an average of
25th and 50th percentile of those who studied business, commerce,
accounting and related fields( R 502 668 per annum Analytic, January
2021 ).
• Thereafter salary inflation increases until the retirement age of 65 years
Preexisting income (from the date of the accident 20 15/18 tax tables to
date of calculation tax tables)
• Following the accident, the plaintiff was hospitali sed, recuperated and
returned to work after 7 weeks during which period she was fully
renumerated,
• She is currently earning R 17 718, 5 per annum, 2022 money terms,
• The industrial psychologist opines on the use of average of the lower
and median quartile Peterson B1 for calculation purposes R 208 000
per annum total package Kock 2022,
• Her earning would increase according to salary inflation until re tirement
age of 65 years.
ASSUMPTION
Financial and Demographic assumption
[75] Past inflation: -
• 2015 -4.47% per annum ,
• 2016 -5.19% per annum,
• 2017 -6.57% per annum,
• 2018 -4.37% per annum,
• 2019 -4.00% per annum,
• 2020 -4.49% per annum,
• 2021 -3.16% per annum,
• 2022 -5.70% per annum ,
• Future inflation is 5.00% ,
• Discounted rate 8.65% ,
• Salary inflation, inflation +1.00% and;
• Mortality rates 100% SALT 1984 to 1986 .
CONTINGENCES APPLIED
[76] The contingency deduction application is the prerogative of the court. The
following contingences have been applied in this matter. Past loss of income pre-
accident and post-accident 5%.
[77] Future loss of income pre-accident and post-accident is 15% and 25%.
METHODOLOGY
[78] The past income period is thew after the date of the calculation period
between the accident date and the date of calculation where the claimant received
an income .
[79] The future income period is the period where the claimant received an income.
INCOME TAX
[80] The total taxable income is calculated based on section 2 income description,
[81] The notional tax that would have been paid is calculated based on the South
African Revenue Services tax tables ,
[82] For the past income period, historical tax tables have been applied;
[83] For the future loss period we have assumed that the future adjustments of tax
tables are according to the future inflation assumption in section 3, assumptions.
This implies that in the future, 2022/3 tax table remain constant in real terms.
LIFE EXPECTANCY
[84] The relevant life expectancy is calculated based on Mortality tables 100%
SALT 1984 -86 highlighted in section 3 assumptions.
EXPECTED PRESENT VALUE
[85] We did not apply interest on mortality to the past income period .
[86] For the future income period, we have applied the actuarial notion of expected
present valu e. This is calculated by multiplying the income after tax by the relevant
inflation factor, discount factor and mortality rate.
[87] The loss at both calculation date for each projected year is estimated to the
difference between the pre -accident and post -accid ent expected present value.
PROFESIONAL GUIDANCE
[88] The approach taken in this report has been made with refence to the
guidelines issued by the Actuarial Society of South Africa (ASSA), in particular the
Advisory Practice Note 701 delictual and other Legal M atters provides guidelines for
the minimum content of an actuarial report to promote consistency and
completeness of disclosure .
[89] RAF Amendment Act 2005 that came into effect on 01 August 2008,
introduced an annual caping in section 17 4(c). The cap is only applicable to
accidents that occurred after 01 August 2008. The cap is applied after allowing for an
accounting, mortality and contingencies. The cap does not apply in certain claims.
[90] We do not have any relationship or conflict of interest with the plaint iff, RAF
and any other various stakeholders involved .
[91] This report is limited to assessing potential claim against RAF for loss of
earnings. The report assumes that there is a valid claim against the RAF for loss of
earnings. The report does not consider an y other possible claim.
ASSESMENT RESULTS
[92] The plaintiff’s claim is per scenario 1 for the past and future loss of income for
an amount of R 3317 509 -00.
[93] We have assessed the loss of the plaintiff on the calculation date. Based on
the income information pro vided, our actuarial methodology and assumption detailed
above, the total additional compensation is the total loss as summarized in section 5
of assessment results.
[94] It should be noted that different information and / or set of assumption will
result in different estimated losses. The total loss will change over time and
recalculation may be required if the date of the calculation is significantly different
from the date of settlement.
REASONS FOR THE LOSS
PRE- ACCIDENT
[95] It is important to note that t he pl aintiff was employed by the North West
University as a senior Administrative Assistant and she reportedly earned R17 000 -
00 per month and R 204 000 per annum. However, she could not provide proof of
her earnings, thus difference is given to factual informa tion. Due to limited
renumeration information provided, the validation of an actual renumeration figure for
the claimant’s pre -existing earnings, it is recommended that the earnings falling
between the median range and upper quartile of B3 (Total package) in the corporate
sector as obtained from the quantum year book (Kock 215) and noted in table 5
above be use d for quantum.
SCENARIO 1
[96] The plaintiff was 33 years old when the accident occurred and she was in an
establishment phase of her career, thus she had not reached her career ceiling.
Therefore, the writer opines that she would have continued with her pre - accident
employment or similar occupations in the open labour market. Thereafter with career
growth, through further work experience and further obtaining additional
qualifications, evidenced by post-accident developments of obtaining a post
graduate diplom a in public management, it is opined that she would have been
legible for promotion within her work place, thereby increasing her earnings.
[97] According to 21st Century Analytico, the earning for administrative secretaries
and related associate professional a ged between 45 -49 years of age are as follows:
-
• 25 percental R 68 097 per annum;
• 50 percental R 255 050 per annum;
• 75 percental R 584 074 per annum.
[98] Considering the above earnings, it is opined that she could have reached her
career ceiling between 50 to 75 percentile (R 419 562.50 per annum) between the
ages 45 -49 years. The writer notes that these earnings are in keeping with the
earning with the earning falling between the median range and upper quartile of
Peterson level B5 (total package) of the corp orate survey earnings (Kock 2022), as
noted in the table 8 above. Thereafter, any increase in her earnings would have
stemmed from the annual inflation increases until she reaches the age of retirement
of 65 years.
[99] It is opined that the plaintiff may remai n in her current employment
notwithstanding the continues effects of the accident -related injuries, her work
capacity may have been diminished due to the residual impairments she remains
with, following the accident, hence she has become a vulnerable compe titor in the
open labour market as she will not be able to compete with able and healthier
competitor.
[100] Upon assessing the above facts, the Court is of the view that the plaintiff
suffered a residual future earning capacity in terms of section 6(b) and (c) of Road
Accident Fund Act of 2006 (RAFA).
[101] Upon assessing the expert report it is not apparent whether the injury suffered
by the plaintiff is temporary or permanent . However, all the experts recommended
that the plaintiff must attend further rehabilitation in which in time s he is expected to
do well after future rehabilitation and conservative treatment .
[102] The experts further stated that she will be able to continue in the position that
she is in at the U niversity until the retirement age of 65 years, however she is only
qualified to do a sedentary kind of work because of the none united ankle injury
which is mostly problematic when she is driving long distance.
[103] The injury suffered by the plaintiff was fou nd to have made a significant
change in her physical health and psychological functioning which seem to
negatively impact of the self -image. The noted emotional distress is associated with
the impact and changes or decline on her physical wellbeing (physic al pain and
discomfort), change in self -image, anxiety related symptoms, resulting in physical
limitations and that makes her to feel vulnerable and fearful of what future will be
like. In agreement with orthopaedic surgeon’s post injury, the plaintiff wil l be able to
perform light heavy duties in future and will not be able an equal competition in open
market particularly due to ankle sprain. She was found to present with significant
symptoms of depression, anxiety and was observed to have some personality
vulnerabilities .
[104] With the above facts the Court is of the view that the plaintiff suffered a
permanent future loss of earnings which will improve in future by the plaintiff
subjecting herself to consult with the recommended experts for rehabilitation and
healing of the injury and sequalae thereon through an undertaking.
[105] To quantify the amount to be awarded to the plaintiff for future loss of earning
capacity the court established the reasonable and fair amount based on the proven
facts and the prevailing c ircumstances7. The Court established the amount with
reference to mathematical calculation s made on the proven facts of the case using
mathematical calculation s of the actuary provided by the plaintiff as the basis of the
loss8.
7 Union Government v Clay 1913 AD 385, Hulley v Cox 1924 AD 234 and Griffiths v Mutual and
Federal 1991 (1) SA 535 (A).
8 Goldie v City of Johannesburg 1948 (2) SA 913 (W) and Southern Insurance v Ba iley 1984 (1) SA
98 (A) at 114 A-G.
[106] In calculating this loss, the Court used scenario 1 calculation of the actuary
with the same contingencies applied and found that the plaintiff suffered only 35% of
the future loss of earning capacity of the calculation. This estimation is exacerbated
by the fact that she could not provide proof of her earnings, thus difference is given
to factual information. Due to limited renumeration information provided, the
validation of an actual renumeration figure for the claimant’s pre -existing earnings, it
is rec ommended that the earnings falling between the median range and upper
quartile of B3 (Total package) in the corporate sector as obtained from the quantum
year book (Kock 2 015) and noted in table above be used for quantum.
[107] The Courts findings are that the p laintiff suffered a loss to the amount of
R 958 003-90, which is 35% loss of the amount claimed by the plaintiff in paragraphs
16 and 92 above , which is reasonable and fair under the circumstances .
ORDER
In light of the above facts the following order is made: -
[108] The application in terms of Rule 38(2) of the High Court Rules is granted;
[109] Merits are granted 100% in favour of the plaintiff;
[110] The Defendant will furnish the Plaintiff with an Undertaking Certificate in terms
of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996, to pay the costs of
Plaintiff’s future accommodation in a hospital or nursing home, treatment of or
rendering of service or supplying of goods to her arising out of the injuries she
sustained in a motor vehicle collision on the 03 May 2015 and the sequelae thereof,
after such costs have been incurred and upon proof thereof limited to 100%.
[111] The general damages are postponed sine die;
[112] The defendant shall pay the amount of R 958 003 -90 for the loss of earning
capacity and;
[113] The defendant shall pay the cost of the action on scale B on party and party
scale.
___________________________
T NYANDENI
ACTING JUDGE OF THE HIGH COURT
PRETORIA
DATE OF HEARING: 16 OCTOBER 2024
DATE OF JUDGMENT : 12 MARCH 2025
APPEARANCES:
COUNSEL FOR THE PLAINTIFF : ADV . P T ZUMA
INSTRUCTED BY: HC MATALADI ATTORNEYS
(PRETORIA)
COUNSEL FOR THE DEFENDANT: NO APPEARANCE
INSTRUCTED BY: NO APPEARENCE