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
Reportable /Not reportable
Case number: 608 5/2022
In the matter between
BENNET MZWAKHE MXOSANA Plaintiff
And
ROAD ACCIDENT FUND Defendant
Coram: Loubser J
Heard: 13 November 2024
Delivered: 13 February 2025
Summary: Contingencies where claimant still fit and able to work .
ORDER
1. The Draft Order as set out below, is made an order of Court, as amended.
JUDGMENT
LOUBSER J
[1] On 2nd February 2018 the Plaintiff was driving in the area of Welkom when his
vehicle collided in an intersection with a motorcycle which had failed to stop at a stop
sign when entering the intersection. A t the time of the accident , the Plaintiff was 37 years
old and he was employed as a long- distance truck driver at Baker’s Transport.
[2] The Plaintiff suffered a serious injury to his right knee in the accident, which is
described as a compound fracture of the right patella. According to a report by an
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orthopaedic surgeon, this injury will adversely affect his chances of any promotion or
advancement in his career or gaining any future employment, and will have a profound
impact on all aspects of his life. It is further mentioned that the Plaintiff suffers from scarring and disfigurement over the right leg and knee.
[3] Eventually the Plaintiff issued summons against the Defendant for the damages
he suffered as a result of the injuries he sustained in the accident. In the summons, he
claimed R1 640 368 for the estimated future medical and related expenses , R3 954 182
for past and future loss of earnings or earning capacity, and R700 000 for general
damages. The total sum claimed under these headings amounts to R6 294 550.
[4] When the matter came before this Court, the Court was informed by the legal
representatives of the respective parties that the only issue that remained to be adjudicated was the cont ingencies to be applied in respect of the loss of earnings. To this
end the legal representatives also agreed that the expert reports provided by both sides
could be submitted to the Court, together with the required confirming affidavits, without the need for the experts to testify in open court. The Court granted this request in terms
of the provisions of the Court Rule 38(2).
[5] On behalf of the Plaintiff the expert reports of an orthopaedic surgeon, an
occupational therapist, an industrial psychologist and an actuary were placed before the Court. On behalf of the Defendant only the report of an industrial psychologist was
handed in. More importantly, the two industrial psychologist s featuring on both sides
provided the Court with a joint minute, to which further reference will be made later
herein.
[6] As a result of these developments, the legal representatives of the parties only
presented argument when the matter was heard, and no witnesses were called. Ms.
Banda, appearing for the Defendant, mainly criticized the expert reports of the Plaintiff on
the basis that all the information furnished therein were not verified. She suggested that, had the accident not happened, a contingency of 20% should be applied to the future loss of earnings, while having regard to the accident, a contingency of 45% should be
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applied to the future loss of earnings.
[7] On the other hand, Mr. Ploos van Amstel , appearing for the Plaintiff, submitted
that the expert reports of the Plaintiff stand uncontested and unchallenged. He referred to
the report of the Plaintiff’s occupational therapis t, and pointed to the fact that collateral
information i s contained in the report, which information was used by the Defendant ’s
own industrial psychologist. He suggested that, having regard to the accident, a
contingency of 35% should be applied to the future loss of earnings.
[8] This brings me to the joint minute produced by the two industrial psychologists on
2 July 2024. In this document, they agreed on the following, having considered the
various expert reports put at their disposal:
1. The Plaintiff completed Grade 12.
2. He worked as a truck driver at the time of the accident.
3. He earned according to his payslip dated 20 October 2018.
4. The Plaintiff will continue to work as such, and seeing that he was still in his thirties and had sought out better paying opportunities in the past, his income
would have increased to reach the Paterson B3 Basic Median level by 55 years
of age. From there his income would have increased in line with salary inflation until he retired at 65 years of age. He would have continued to earn the additional income as listed on his payslip.
5. After the accident the Plaintiff could not work for 11 months and he did not
receive any income in that period.
6. He returned to work and is currently earning in line with the income noted on his
payslip dated 28 February 2023.
7. His income will increase in line with salary inflation until he retires at 65 years of age.
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8. Contingencies should be applied with regards to possible further loss of income
due to sick leave or possible job loss.
[9] Following receipt of this joint minute, the Plaintiff ’s attorneys requested their
actuary to re- calculate the loss of earnings on the basis of what was agreed to in the joint
minute. He provided his revised calculations on 8 July 2024. He made no provision for
contingency deductions, remarking that it is omitted for negotiations or decision of the
Court. He indicated the past earnings had the accident not occurred as R2 994 482, and
the future earnings had the accident not occurred as R 9 103 804, resulting in a total of
R12 098 286. Having regard to the accident, he indicates the past earnings as
R2 389 344 and the future earnings as R5 754 760, resulting in a total of R8 144 104.
The difference in the two totals amount to R3 954 182, which figure then represents the
loss of earnings. As indicated above, contingency deductions still have to be applied to these figures.
[10] Before the recalculation was done, the actuary indicated the loss of earnings as
R3 742 732, and no cont ingency deductions were done in that calcul ation as well. To
further complicate matters, a notice of retrenchment was handed in at the hearing,
showing that the Plaintiff’s employment with Bakers Transport was terminated due to
operational requirements, and not due to his injuries, on 30 April 2024. It is clear that this
retrenchment happened some three months before the actuary provided his revised
calcu lations. He was obviously not informed of the retrenchment . Nor was the Court
provided with any further information surrounding the Plaintiff’s retrenchment. For
instance, the Court is in the dark as to whether the Plaintiff has managed to find
alternative work, and if so, what he is currently earning. The Court also does not know
whether the Plaintiff received any payment from his empl oyer at the time of retrenchment.
[11] However, the Plaintiff was not retrenched because of the injury he sustained in
the accident, and consequently his retrenchment cannot have an effect on his claim for
loss of earnings and on the contingencies to be applied. In these respects, the joint
minutes provide valuable information for the Court in the form of an agreement between
the respective industrial psychologists.
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[12] A careful reading of the joint minutes makes it patently clear that the Plaintiff
could not work for 11 months after the accident, during which period he received no
income. After that period he returned to his work and he continued to work for a period of
approximately 6 years until he became retrenched. It is not suggested in the minutes that the Plaintiff was unable to do his work or that he could lose his job in the future due to the
injury he has suffered in the accident. Contingencies should only applied with regards to
possible further loss of income due to either sick leave or possible job loss not related to
his injury. The Plaintiff can therefore still work until his age of retirement . The Court is
never theless mindful of the findings of the occupational therapist that the Plaintiff will be
an unequal competitor in the open market because he should not perform work which exceeds light work.
[13] As for the issue of contingencies, it is settled law that the provision of
contingencies is a matter of judicial discretion, which of necessity is a rough estimate.
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They are arbitrary and highly subjective.2
[14] In applying the contingencies decided upon by the Court, the Court will make use
of the revised calculations provided by the actuary. The Cour t will apply a 20%
conting ency on the future earnings of the Plaintiff in the pre- morbid scenario, thereby
coming to a total of R10 277 526. In the post -morbid scenario the Court has regard to all
the circumstances of the Plaintiff as far as his future earnings are concerned, and a
contingency deduction of 20% seems to be equally justified. Under t his heading the total
future earnings in the post -morbid scenario amounts to R6 993 152. When this figure is
deducted from the total of R10 277 526 earnings in the pre- morbid scenario, the total loss
of earnings amount to R3 284 374.
[15] Mr. Ploos van Amstel has provided the Court with a Draft Order, which will be
made an order of Court as amended to reflect the Court’s decision on the contingencies.
The following order is made:
1 Road Accident Fund v Guedes 2006(5) SA 583 SCA paras 5 and 8
2 Road Accident Fund v Kerridge [2018] ZASCA 151 at para 42
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[16] The Draft Order as set out below, is made an order of Court, as amended.
1. The Defendant is liable for payment of 100% ( HUNDRED PERCENT ) of the
Plaintiff's proven or agreed damages resulting from a motor vehicle collision that
occurred on 2 February 2018.
2. The Defendant shall provide an undertaking in terms of S ection 17(4)(a) of the
Road Accident Act 56 of 1996, (“the undertaking”), to compensate the Plaintiff for
100% (HUNDRED PERCENT ) of the costs relating to the future accommodation of
the Plaintiff in a hospital or nursing home or treatment of or rendering of a service, or
supplying of goods to the Plaintiff , after the costs have been incurred and on proof
thereof and arising from the collision which occurred on 2 February 2018.
3. The Defendant is ordered to pay to the Plaintiff the amount of R3 284 374
(THREE MILLION TWO HUNDRED AND EIGHTY- FOUR THOUSAND AND
THREE HUNDERED AND SEVENTY- FOUR RANDS) for loss of earnings /earning
capacity.
4. The aforesaid amount is to be paid into the following bank account:
Name of account holder : VENTERS INC.
Name of bank : ABSA Bank
Account number : 4[…] (TRUST)
Branch code: 632 005 – ABSA Universal
Reference number : JVB 41 MXO
5. Should payment as aforesaid not be made within 180 days from the date
hereof, the Defendant shall be liable for payment of interest on the amount of
R3 284 374 calculated at the prescribed rate, from 14 days after the date of this
court order, till date of payment .
6. The Defendant shall pay the Plaintiff's taxed or agreed party and party costs , on a
High Court scale to date of this order, which shall include the reasonable qualifying fees
(where applicable) of the following experts :
Dr LF Oelofse Orthopaedic Surgeon
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L van Zyl Occupational Therapists
A van der Bijl Industrial Psychologist
W Loots Actuary
7. The Defendant shall pay the Plaintiff's counsel fees on scale B.
8. The Plaintiff shall allow the Defendant 180 days (ONE HUNDRED AND EIGHTY)
calendar days to make payment of the taxed or agreed High Court costs.
9. Should payment as aforesaid not be made within 180 days from the date of
settlement/taxation, the Defendant shall be liable for payment of interest
calculated at the prescribed rate, from 14 days after the date of
settlement/stamped allocatur, to date of payment.
P.J. LOUBSER, J
For the Plaintiff : Adv. P. C. Ploos van Amstel
Instructed by: Venters Inc, Century City
c/o Venters Bloemfontein Inc, Bloemfontein
For the Defendant : Ms. N. P. Banda
Instructed by: State Attorney, Bloemfontein