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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 no: 3174/2022
In the matter between
PATRICIA ZANELE MAVUSO Plaintiff
and
ROAD ACCIDENT FUND Defendant
Neutral citation: Patricia Zanele Mavuso v Road Accident Fund (A52/2022) [2022]
ZAFSHC (07 March 2025)
Coram: Mpama AJ
Heard: 25 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand-
down is deemed to be 14 H00 on 07 March 2025
Summary: Road Accident Fund: Loss of earnings
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ORDER
1. The Defendant to pay the plaintiff the amount of R3 265 528.00 (THREE MILLION
TWO HUNDRED SIXTY -FIVE THOUSAND AND FIVE HUNDRED AND TWENTY -
EIGHT RAND) for loss of earnings , being 85% of the plaintiff’s proven damages.
2. The aforesaid amount is to be paid into the following bank account:
Symington & de Kok Attorneys
First National Bank
Account number: 625[ …]
Branch code: 250 655
Reference: TR0706FXM3335
3. The defendant is ordered to furnish the plaintiff with an undertaking in terms of section
17(4)(a) of the Road Accident Fund Act, 1996, for payment of 85% of the costs of the future accommodation of the plaintiff in a hospital or nursing home, or treatment of or
rendering of a service or supply of goods to her arising out of the injuries that she
sustained in the motor vehicle collision which occurred on
19 February 2019 and the
sequelae thereof, after such costs have been incurred and upon proof thereof.
4. The adjudication of the remaining aspect of past medical expenses and general
damages are separated in terms of Rule 33(4) and postponed to a hearing date
applied for by the Plaintiff upon receiving the outcome from the HPCSA .
5. The defendant shall pay the plaintiff’s taxed party and party costs on a High Court
scale to date of this order, which shall also include all the traveling costs for the plaintiff
and AV Theron Swanepoel Attorneys, the translator fees and the reasonable qualifying, preparation fees , reservation fees and appearance fees of Counsel (on
scale B) and the following experts (where applicable):
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5.1 Dr. Ziervogel (orthopaedic surgeon);
5.2 Susan van Jaarsveld (Industrial psychologist);
5.3 Enid Kruger (Occupational therapist);
5.4 Dr. Fischer (orthopaedic surgeon);
5.5 Rikus van der Poel (Neuropsychologist) ;
5.6 Human & Morris (Actuary).
6. Interest shall accrue at the prescribed statutory rate in respect of:
6.1 the capital amount of the claim, calculated 14 (fourteen) days from date of this
order to date of final payment .
6.2 the taxed costs, calculated from 14 (fourteen) days from date of taxation to date of final payment.
JUDGMENT
MPAMA AJ
[1] On 19 February 2019 the plaintiff was involved in a motor collision on the R57
road near Sasolburg. Resultantly, the plaintiff instituted action proceedings against the
defendant for damages sustained in th e motor vehicle accident .
[2] The defendant is the Road Accident Fund, a statutory body established in terms
of s 2 of the Road Accident Fund Act 56 of 1996 (the Act) . At the commencement of trial,
Ms Booysen appeared for the defendant. She informed the court that she had no
instructions from the defendant and requested to be excused from the proceedings . I
acceded to her request. The plaintiff advised that merits have been settled on the basis
that the defendant pays the plaintiff 85% of her proven or agreed damages , requested
that the general damages and past medical costs be separated and the only issue for
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adjudication be the plaintiff’s loss of future income.
[3] Two witnesses, Ms Zanele Mavuso and Ms Van Jaarsveld testified for the
plaintiff. An application was brought by the applicant in terms of rule 38(2) of the Uniform
Rules of Court for the experts’ evidence to be admitted by way of affidavits and,
exercising my discretion, I granted application. Pursuant to my order , the following
affidavits were handed in and I also deem it prudent to refer to some salient fact s in the
reports in order to explicate the condition of the plaintiff post -accident :
[4] (i) Dr PJ Fisher, an orthopedic surgeon examined the plaintiff on 7 June 2024,
five years since the accident. He reported that the plaintiff complained of intermittent
neck pain and stiffness with constant lower back pain. He had X-rays taken, which
revealed that the plaintiff had cervical spine degeneration on C4/C5 and C5/C6 levels.
Her lumber spine X -rays showed endplate degeneration. There was a T11 anterior
wedge compression fracture noted that would fit in with the history of a back injury in the
accident. He concluded that the injuries sustained by the plaintiff had a definitive
degeneration of the lumbar spine, and would in all probability undergo degeneration; her
condition would probably worsen over the next 10- 15 years and could end in surgical
intervention. He estimated that the plaintiff’s retirement age would probably be decreased
by 10- 15 years.
(ii) Dr JH Van Der Poel, a clinical psychologist , evaluated the plaintiff on 31 August 2024.
He reported that the plaintiff suffered from chronic pain, psychological problems including
moderately severe depression, reduced quality of life across multiple domains, inability to perform her pre -accident job duties with subsequent premature resignation and limited
employment prospects due to physical l imitations. According to him, the plaintiff’s
resignation seem ed to have been made prematurely and in desperation due to the pains
she suffered as she may have had a longer path if the necessary assistive devices and accommodations were implemented. The plaintiff’s low mood and high levels of anxiety likely compromised her judgment at the time, as she viewed resignation as the only option to address her ongoing difficulties within the school environment. He
recommended that the plaintiff con sults with a psychiatrist at least every three -six months
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to review her mood and medication regime.
(iii) Ms E Kruger, an occupational therapist , conducted an evaluation of the plaintiff
on 24 April 2023 to determine the effect of the injuries on her functional abilities. She
reported on her education and qualifications as follows : the plaintiff is a qualified teacher,
and has been employed as such since 2009. Her highest level of qualification is a B. Ed
(Hons) degree. At the time of the accident , as a teacher she held a position of Head of
Department (HOD). The plaintiff reported that she struggled to bend forward at learners’
desks in order to give individual attention to the learners , to stand or sit for a long time
and experiences anxiety when in a car. She concluded that the physical abilities of the
complainant do not meet the demands of her job since she can only stand or bear weight
on lower limbs on an occasional basis, and her dynamic strength mee ts the demands of
only sedentary work.
(v) Ms S van Jaarsveld, an industrial psychologist , conducted an evaluation of the
plaintiff’s earnings . I will, hereinunder , deal with the contents of the report when dealing
with her viva -voce evidence.
(vi) Mr IW Morris is an actuary who did actuarial calculations for the plaintiff’s loss of
earnings claim , basing his calculations on the opinions of the industrial psychologist and
the occupational therapist. He also considered a lump of R826 000.00 received by the
plaintiff from her former employer. He concluded that with the application of 10% contingency deductions plus apportionment, the plaintiff’s loss of income was an amount of R4 054 667.00.
[5] The plaintiff ’s evidence can be succinctly summarized as follows: On 19
February 2019 she was involved in an accident at Sasolburg and suffer ed injuries o n her
chest and back. She was taken to Vaal Park Hospital immediately after the accident. At
the time of the accident she was employed by the Department of Education as a teacher
and held an HOD post at Ipetlemeng School, Koppies. Her qualifications are a Junior
Primary Teacher’s Diplom a, Advanced Certificate in Education and B. Ed (Hons). After
the accident , she continued working as a teacher and was transferred to, a school in
Sasolburg in order to be close to her family. At the new school , she experienced some
challenges, though not related to the accident and she returned back to her previous
school where s he continued teaching until her resignation on 31 July 2024. She could no
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longer cope at work due to back pain. During classes, she was expected to bend towards
the learners’ desks when offering lessons to help individual learners and this proved
difficult due to her injuries. In addition to teaching, she performed some administrative
duties as an HOD and supervised some teachers , but struggled to do so due to her
injurie. The required supervision due to her injuries. She was expected to sit down for
longer hours and analyse test and exam result s, which proved to be a problem for her as
she struggled to sit or stand for extended periods. All these were as a result of the
accident as she had no such complaints before the accident.
[6] After resignation, she got temporarily employed as a teacher for 21 days ,
effective from 15 August 2024. She was only required to supervise children who were
doing their own reading during this period as she could not handle teaching.
[7] Ms Van Jaarsveld testified that she has been an industrial psychologist since
2000. On 3 May 2023, she assessed the plaintiff and compiled a report . The objective of
her assessment was to assess t he im pact of the accident on the plaintiff and to
determine her loss of income. T o compile the report, she considered the expert reports of
Dr Fischer and the occupational therapist. She assessed the plaintiff’s employment
history and concluded that if it was not for the accident, the plaintiff would have worked
as a teacher and HOD until she attained the age of 65 years. She further reported that
the plaintiff would be entitled to salary hikes, bonuses, pension and medical subsidies from her employer. Her conclusion w as that due to the plaintiff’s physical condition post -
accident she can no longer perform the duties of a teacher or any other similar position.
The only work the plaintiff could do was sedentary work , but due to her age it would be
difficult for her to secure alternative employment and t he plaintiff needed to be
compensated for loss of income. This concluded the case for the plaintiff.
[8] The court is called to determine the plaintiff’s loss of earnings. The onus lies on
the plaintiff to prove that her earning capacity has been negatively impacted because of
the injuries . Once that is established, then the quantification process may be assessed
and determined.
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[9] In Rudman V Road Accident Fund1 Jones AJA at para 11 said:
‘I believe that this conclusion is correct. The fallacy in Mr Eksteen’s criticism is that it assumes
that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in
his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be
made. A physical disability which impacts upon capacity to earn does not necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity
indeed give s rise to pecuniary loss .’
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[10] The evidence of the plaintiff is that she sustained injuries from the collision in
2019. S he continued to work for a period of five years as a teacher post-accident and
resigned in August 2024 due to her injuries. Her resignation was occasioned by the fact
that she could no longer cope at work due to her injuries. The plaintiff’s evidence is
corroborated by that of the orthopedic surgeon who reported that the plaintiff ’s injuries
would, in all probability , undergo further degeneration and lead to future problems for her.
The occupational therapist opined that due to her injuries , the plaintiff can no longer
perform her duties as a teacher . It is so that after resignation, she took a 21- day job as a
teacher . However , she testified that due to her condition, she only supervised the
learners as she could not perform as a teacher. There is no evidence to controvert the
plaintiff’s evidence. I am satisfied that the plaintiff has proven her case for loss of future
earnings.
[11] The next issue is the quantification of loss of earnings including contingency
deduction. It is customary for a court to make a contingency deduction from the plaintiff’s
proven loss of earnings.
[12] The plaintiff’s actuary calc ulated the loss of future earnings at R4 036 419.00
having applied 10% contingency deduction. The plaintiff proposed that an appropriate
rate of deduction was 10% since there were no negative contingency factors present to
1 Rudman v Road Accident Fund [2002] ZASCA 129; 2003 (2) SA 234 (SCA).
2 Ibid para 11.
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warrant a higher percentage deduction. There was no contradicting view.
[13] In Goodall V President Insurance Co Ltd3 per Margo J the court held:
‘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 practi sed by
ancient prophets and soothsayers, and by modern authors of certain type of almanack, is not
numbered among the qualifications for judicial office.’4
[13] In Southern Insurance Association Ltd v Bailey NO5 it was said:
‘Any enquiry into damages for loss of earning capacity is to its nature speculative, because it
involves a prediction as to the future without the benefit of crystal balls, soothsayers, augers or oracles. All that the court can do is to make an estimate, which is often a very rough estimate of the present value of a loss. ’
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[14] The plaintiff resigned from work at the age of 52 years . She had a pre- existing
condition and suffered from depression prior the accident . Immediately after resignation, she
was able to work for 21 days in another school and remained in that school until the expiry of her contract. Except for her inability to render proper services as a teacher there were no other challenges . This tends to suggest that she can still secure work from sympathetic
employers and there are reasonable prospects for such. Considering t he aforementioned, my
view is th at a hi gh contingency deduction should be applied in the circumstances of the
plaintiff. As such, a 25% deduction is appropriate. Therefore, an amount of R 3 265 528.00 is
a fair and reasonable amount ( apportionment also taken into consideration) .
[16] Accordingly, I make the following order :
1. The Defendant to pay the plaintiff the amount of R3 265 528 .00 (THREE MILLION
3 Goodall V President Insurance Co Ltd 1978 (1) SA 389 (W).
4 Ibid at 392H -393A.
5 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 .
6 Ibid at 113F.
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TWO HUNDRED SIXTY -FIVE THOUSAND AND FIVE HUNDRED AND TWENTY -
EIGHT RAND) for loss of earnings , being 85% of the plaintiff’s proven damages.
2. The aforesaid amount is to be paid into the following bank account:
Symington & de Kok Attorneys
First National Bank
Account number: 625[ …]
Branch code: 250 655
Reference: TR0706FXM3335
3. The defendant is ordered to furnish the plaintiff with an undertaking in terms of section
17(4)(a) of the Road Accident Fund Act, 1996, for payment of 85% of the costs of the
future accommodation of the plaintiff in a hospital or nursing home, or treatment of or
rendering of a service or supply of goods to her arising out of the injuries that she
sustained in the motor vehicle collision which occurred on 19 February 2019 and the
sequelae thereof, after such costs have been incurred and upon proof thereof.
4. The adjudication of the remaining aspect of past medical expenses and general
damages are separated in terms of Rule 33(4) and postponed to a hearing date
applied for by the Plaintiff upon receiving the outcome from the HPCSA .
5. The defendant shall pay the plaintiff’s taxed party and party costs on a High Court
scale to date of this order, which shall also include all the traveling costs for the plaintiff
and AV Theron Swanepoel Attorneys, the translator fees and the reasonable qualifying, preparation fees , reservation fees and appearance fees of Counsel (on
scale B) and the following experts (where applicable):
5.1 Dr. Ziervogel (orthopaedic surgeon);
5.2 Susan van Jaarsveld (Industrial psychologist);
5.3 Enid Kruger (Occupational therapist);
5.4 Dr. Fischer (orthopaedic surgeon);
5.5 Rikus van der Poel (Neuropsychologist) ;
5.6 Human & Morris (Actuary).
6. Interest shall accrue at the prescribed statutory rate in respect of:
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6.3 the capital amount of the claim, calculated 14 (fourteen) days from date of this
order to date of final payment .
6.4 the taxed costs, calculated from 14 (fourteen) days from date of taxation to date
of final payment.
L MPAMA , AJ
Appearances
For the plaintiff : Adv H.J. van der Merwe
Instructed by: Symington & de Kok Attorneys
Bloemfontein
For the defendant : Ms M. Booysen -Molina
Instructed by: Office of the State Attorney
Bloemfontein