CASE NUMBER- initials 1 JUDGMENT
YEAR- MONTH -DAY
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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO : 27265/2021
DATE : 06-02-2025
In the matter between
M T K […] Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
WEIDEMAN , AJ: Matter number 4 on this week's roll is case
number 27265/2021, the matter of M T K[ …] and the Road Accident
Fund. This claim ar ose from an accident which occurred on
8 June 2016 . The plaintiff's date of birth is 25 May 2001 and she
was 15 years old at the time of the accident . DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE
SIGNATURE
CASE NUMBER- initials 2 JUDGMENT
YEAR- MONTH -DAY
The plaintiff's claim consist s of the following:
• Past hospital medical expenses : R6 319.72
• Future hospital medical expenses : Undertaking
• There is no claim for past loss of earning s
• Future loss of earnings: R 2.566 million
• General damages : There was an agreement that this head
of damage would not proceed.
At the commencement of the hearing of the matter counsel moved an application in terms of Rule 38(2). The applicant was granted.
Counsel then moved an application in terms of Rule 33 (4) from the bar to have the aspect of general damages separated out and postponed sine die as the defendant had not yet made a decision
as to the seriousness of the plaintiff's injuries. This application was
also granted.
The aspect of liability was resolved on or about 8 July 2019. The
defendant accepted liability for 100% of such damages as the plaintiff may be able to substantiate.
The plaintiff's injuries , as per paragraph 6 of the P articulars of
Claim , were the following:
• Injury to the thoracic spi ne
• low back injury
• pelvic injury
• neck injury
• right ankle injury.
These injuries affected the plaintiff ’s school career to the extent
that she could not continue with sporting activities, which she was fairly competent with prior to the accident.
CASE NUMBER- initials 3 JUDGMENT
YEAR- MONTH -DAY
After leaving school, she commenced her studies in political
science . She abandoned those studies on the basis that she lost
interest and wanted to pursue a career in the field of teaching, this
being her passion - especially the foundational phase.
Counsel was asked to comment on the general delictual principle
of mitigat ion of damages.
Counsel referred me to case law as part of his H eads of Argument
and which addresses the general principles relating to liability. Neither of the cases, as I understood it , addressed specifically
whether plaintiff’s exercising t he choice to follow a career which
was inc ompatible with the injuries sustained, served to mitigate her
damages.
Counsel argued that it was inherently iniquitous that a victim of an
incident over which she had no control, in this instance been a
passenger in a bus , should be expected not to pursue her chosen
career and passion as a result of this general principle. Although I
have sympathy with counsel's argument , I do not believe this Court
is in a position to rewrite general delictual principles.
Having said that and having considered the medico- legal reports
filed of record, I am persuaded that the plaintiff’s potential ha d
been compromised, bearing in mind the injuries . It is accepted that
she had lost some of her ability to pursue the career of her choice
unencumbered. Although it is possible that she may not be able to
function, in the long- term , on the same basis as if the accident had
not occurred, I am not at all convinced that this is an inevitable
certainty .
I do believe that the plaintiff , through her resilience to- date, had
shown that the correct point of departure for the calculation should
CASE NUMBER- initials 4 JUDGMENT
YEAR- MONTH -DAY
be her uninjured earnings and which, pre-contingency deduction, is
the sum of R10 362 200.
I am also of the opinion that the same figure should be used in both the pre - and post -accident sce narios but that the impediments
that she may suffer in the pursuit of her career and the limitations that there might be, should be addressed by way of a contingency differential.
But for the accident , working on a period of 40 years, I have used
a contingency deduction of 0.75% per annum and which equates to
a 30% contingency deduction. The nett figure , after the
contingency deduction , in the but for the accident scenario, is
therefore R7 253 540.
In the h aving regard to the accident scenario and looking at the
content of the medico -legal reports , I am of the view that a
contingency deduction of 1.25% per annum would adequately
address the plaintiff’s loss . Calculated over a 40- year period, this
equates to a 50% contingency deduction. The nett effect is an
amount of R5 181 100.
The calculation is therefore R7 253 540 - R5 181 100 =
R2 072 440, yielding an amount of R2 072 440.
ORDER
[1] The plaintiff's application in terms of Rule 38(2) is
granted.
[2] The plaintiff's application in terms of Rule 33(4) for the
separation of general damages and the postponement thereof sine
die is granted.
[3] The defendant shall pay the plaintiff the sum of
R2 072 440 in respect of loss of earnings.
[4] The defendant shall provide the plaintiff with a 100%
CASE NUMBER- initials 5 JUDGMENT
YEAR- MONTH -DAY
undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act, in respect of such accident -related future hospital medical and
ancillary expenses as she may require.
[5] The defendant shall pay the plaintiff the sum of R6 319.72
in respect of past hospital and medical expenses.
[6] The defendant shall pay the plaintiff's party and party
costs as taxed or agreed, counsel's fees to be on Scale B and the
cost to include both Tuesday's fee and today's fee.
Matter number 4 on this week's roll, case 0027265/2021, the
matter of K[…] and the Road Accident Fund. This matter was
presented by counsel earlier today.
My order ha d been reduced to writing. I mark it "X" by
identification.
WEIDEMAN , AJ
JUDGE OF THE HIGH COURT
DATE : ……………….