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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE
Case Number: 7407/2022

In the matter between

BRUCE NICHOLAS VAN DER MERWE PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT


JUDGMENT


Date of hearing: 19 March 2025
Date of judgment: 3 April 2025

BHOOPCHAND AJ:

1. The Plaintiff is a 49-year-old male . He was a passenger in one of the two
vehicles involved in an accident on 28 July 2019. The Defendant is the statutory
body established under the Road Accident Fund Act, 56 of 1996 (‘the RAF Act’) to

pay compensation for loss or damages wrongfully caused by driving motor vehicles .
The Plaintiff’s claim for general damages and medical expenses was resolved. The
Court is asked to determine the claim for loss of earnings. The Plaintiff and his
appointed Industrial Psychologist testified. Affidavits confirming t he remaining expert
reports under Rule 38(2) were accepted in place of their evidence. The parties
provided written and oral arguments . The trial was truncated under Rule 39(20).

2. The Plaintiff sustained injuries to his neck, pelvis and ribs. The superior facet
of his seventh cervical vertebra was fractured but not displaced. He had multiple rib
fractures resulting in a flail left hemithorax. The left sacral ala and his pubic rami
were fractured. The fractures of the pelv is involved the acetabulum bilaterally.1 The
Plaintiff also sustained a laceration of his scalp. The Plaintiff suffers neck and pelvic
pains. He is unable to walk more than 500 meters and stand for longer than 30
minutes . He has difficulty climbing stairs and is unable to crouch or kneel. The
Plaintiff walks with a pronounced limp that was evident when he approached the
witness box to testify.

3. The plaintiff’s testimony included an overview of his employment history
spannin g the construction industry, followed by his transition into the security sector
in 2009 . He obtained the E, D, and C grades of training . There are two grades above
C, namely B and A. The Plaintiff was unemployed for one year , commencing in 2018.
His job before the accident required him to be on his feet the whole day. He was
promoted to shift supervisor before the accident. He received one month’s sick pay .
The Plaintiff returned to work in October 2019 and was accommodated i n his
workplace till 31 December 2019. He resigned for reasons unrelated to the accident.
He could not return to security work as he fe lt constant pain throughout his body. He
struggles to use his hands as they cramp in the flexed position. He uses a neck
warmer .

4. Under cross -examination, the Plaintiff testified that his job as shift supervisor
was on a contract basis. He was confused about whether the job was temporary or

1 The acetabulum is like a "socket" in the hip bone. It's the part of the pelvis that holds the "ball"
at the top of the thigh bone or femur. Together, they make the ball -and-socket joint of the hip,
which allows the leg to move in all different directions —like when walking, or running.
permanent , finally conceding that he held a permanent position . He returned after
the accident at the same salary he received as a shift supervisor. The Plaintiff
applied for one job as a security officer after he resigned . He has occasionally done
painting and cleaning jobs.

5. The Orthopaedic Surgeon found restrict ion of the Plaintiff’s neck movement
and predicted that the Plaintiff would suffer moderate to severe pain, which is
unlikely to improve . The pelvic injuries caused significant pain and severely affected
the Plaintiff’s mobility . The Orthopod did not expect the Plaintiff to return to work as
a security officer or to any other type of work that required him to be on his feet
because of his mobility restrictions. The radiological studies conducted at the
surgeon's request on 10 May 2022 revealed the fractures sustained in the accident.
They were all healed. In particular, the standard and stress views of the hip joint
were normal.

6. The Occupational Therapist assessed the Plaintiff on 19 July 2022. The
sequelae of the Plaintiff’s nec k injury would impair him from working with his arms
elevated or his neck extended . She expected him to experience pain with all neck
movements. The sequelae did not exclude the Plaintiff from sedentary or active
work. The pelvic injury and its sequelae , which seemed to affect the Plaintiff the
most , did cause functional impairment and was considered unlikely to improve. The
Therapist noted that the range of movement in the lower limbs remained functional .
However , the major limitation was pain a ssociated with prolonged sitting, standing,
walking, performing low -level postures, repetitive step climbing, and load handling,
which exceeded the limits of light physical strength. The expert expressed the view
that the Plaintiff was still capable of per forming tasks that required these modalities.
The therapist suggested that the Pl aintiff was best suited to semi -sedentary or light
work with accommodations to enable him to change his posture regularly.

7. The Plaintiff's appointed Industrial Psychologist considered that the Plaintiff
was working in a semi -skilled position and had been promoted to a supervisory
position before the accident. The Plaintiff planned to continue in the security industry,
and he may h ave gained some career advancement through experience, skills
courses , and by obtaining a driv er’s license . Significant earnings progression was
not expected , considering his age. The expert recommended using R7,864.50 per
month as uninjured earnings. The salary range of a grade C security officer is
between R4786 and R5036 per month. The Plaintiff earned more than that amount.

8. Despite stating that the Plaintiff planned to continue employment in the
security industry, the expert suggested that if he left his job, he could have sought
alternative work in the same industry. This opinion was raised in the context of the
Plaintiff resigning from the post he held , which was unrelated to the accident. The
expert then suggested that the Plaintiff “may have considered alternative
employment options in semi -skilled positions in the construction sector where he
worked ” before securing security work. The Plaintiff last worked in the construction
sector in 2009 .

9. As for ‘possible’ employment in the construction industry, and if the Plaintiff
had to leave his security job for whatever reason, the expert suggested that he may
have earned between R7 818.47 and R8511.75 in a full-time capacity as a general
worker or un qualified artisan. The expert suggested that an additional 20% could be
added to the basic wage rates to account for extra benefits. The Plaintiff’s attorney
interpreted this to mean that there was a 50% chance that the Plaintiff would leave
the security i ndustry, for which he had obtained qualifications, and return to the
construction industry. There is no discernible basis on which the attorney could have
interpret ed the ‘possibility’ of reverting to the construction industry to mean a 50%
chance of secur ing work there in the uninjured scenario.

10. The Plaintiff’s legal team submitted actuarial calculations based on the
premise referred to in the preceding paragraph. The Court directed that a further
calculation be done, ignoring the 50% chance of securing work in the construction
industry from the d ate of the accident. As it turns out, and surprisingly so, the
calculation of loss was less if the split career projection was applied.

11. For the injured state, the Industrial Psychologist was guided by the Orthopod
and Occupational Therapist, who indicated that the Plaintiff ’s ability to work ha d been
severely restricted. Physical agility is an inherent requirement in the work of a
security officer , even though it may not be part of a regular workday. The Pl aintiff
worked in a standing position , which would pose problems for him. He would be
unable to compete for alternat e jobs in the security industry . He planned to continue
with casual jobs , including painting and other similar opportunities. Considering his
physical restrictions , the expert anticipated that the Plaintiff’s residual earnings would
remain limited.

12. The expert testified that positions could be created to accommodate Grade C
security officers in seated positions . The expert consi dered that the Plaintiff was
highly motivated as he had initially sought work in the construction industry and then
moved to the security sector. When asked about the Plaintiff’s single attempt to
secure security work post -accident, the expert stated that it was not due to a lack of
effort, as there were challenges in securing interviews. The expert’s responses made
no sense.

13. The Defendant also appointed an Industrial Psychologist to assess Plaintiff on
16 August 2024. She considered that the Plaintiff would have been able to perform
work within his scope of education, experience , and skills until the normal retirement
age of 65 ye ars. His earnings of R8,500 per month, or R102,000 per annum, fell
between the earnings range of the median and upper quartile of semi -skilled
workers . She considered it reasonable to assume that the Plaintiff would have been
able to maintain these earning s, as adjusted for inflation, until the normal retirement
age.

14. For the injured state , the expert noted that when the accident occurred, the
Plaintiff had been promoted to Shift Supervisor, earning R8,500 per month, plus any
overtime worked, as well as in centive bonuses . He received paid sick leave for one
month. He returned to work two months after the accident whilst still on crutches. He
was assigned to a lighter role in the office, where he was responsible for supervising
the arrival and dispatch of goods . The Plaintiff resigned as he was blamed for items
that went missing, and he felt that the trust relationship with the client had been
broken . He has not been formally employed since. The Plaintiff -appointed Industrial
Psychologist obtained collateral information from the Plaintiff’s shift manager. The
shift manager expressed the view that the Plaintiff’s resignation was not surprising
as security work is based on a trust relationship . Once it is broken , it is difficult fo r an
employee to regain that trust.

15. The Plaintiff has done occasional work for friends , such as painting, cleaning
gutters, pressure washing walls or roofs, and fixing paving or flooring. The Industrial
Psychologist also agreed with the Orthopod and Occupational Therapist that the
Plaintiff would be limited in both active and semi -sedentary work . Due to his low
educational level and age, Plaintiff w ould find it difficult to secure semi -sedentary
work and was consequently limited to em ployment that relie d on his physical
abilities. He w ould be at a disadvantage when trying to compete in the open labour
market with uninjured people. It is unlikely that he will be able to compete in the open
labour market in the future at the same level a s before the accident. The expert d id
not suggest the Plaintiff’s earnings potential in the injured state.

16. The Defendant argued that Plaintiff had not suffered a loss of earnings, as he
returned to work and was accommodated but resigned for reasons unrelated to the
accident. The Defendant suggested that if the Court is pers uaded to award a claim, a
higher contingenc y should apply to uninjured earnings to determine the loss.
Defendant suggested that a 5% deduction apply to past injured earnings and a 40%
deduction to future uninjured earnings to determine the loss if the Court considered
the Plaintiff unemployable.

EVALUATION

17. The analysis of the Orthopaedic report completed in June 2022 does not
explain the source of the ongoing pain experienced by the Plaintiff. In particular, the
radiological studies and the examination do not address why the Plaintiff is
particul arly limited by his hip, which manifests as an exaggerated limitation of lower
limb movements and a pronounced limp. The Orthopod and the Occupational
Therapist considered the Plaintiff to be unemployable as a security officer because of
his mobility restr ictions. Yet, he did go back to work and was accommodated in his
workplace. The employer would have had to have good reason to retrench the
Plaintiff from his job. Once the Plaintiff resigned, he did do occasional work , including
flooring and high-pressure washing of roofs. This raises the question of how the
Court should address this set of circumstances. The Defendant suggested applying
higher deductions to the calculated earnings . The experts did not suggest a time
frame within which the Pla intiff would have become unemployable as a security
officer who was accommodated in his workplace .

18. The Actuary did four calculations altogether . The first actuarial calculation was
based on the career projections of the Plaintiff -appointed Industrial Psychologist as
of March 2023, and the second on the Defendant’s expert. The third calculation was
an adjusted calculation based on the Plaintiff -appointed expert’s trajectory. The
fourth calculation was directed by the Court , which requested a calculation based on
the Plaintiff -appointed expert’s predictions while disregarding the 50% chance of
acquiring work in the construction sector for uninjured earnings. The Court will use
the fourth set of calculations as the basis for determining the Plaintiff’s claim under
this head of damages. These calculations accord with the second set of calculations
based on the Defendant -appointed expert’s career projections.

19. The Actuary included R26 700 as injured earnings to cater for the earnings
and fringe benefits that the Applicant would have received in the months he worked
after the accident . The Plaintiff argued for applying 5% to past earnings and 15% to
future earnings to calculate the loss of earnings in the injured state . The Court
accepts that the Plaintiff left his work for unrelated reasons and would have
continued to earn in the injured state for some time before his employer would have
been forced to retrench him . There was no suggestion from the collateral information
sourced by the Industrial Psychologists that the employer would not have
accommodated him for a further period. The Court is not persuaded that the Plaintiff
would not have been able to work for som e time in the accommodated position that
was created for him. The experts did not commit themselves to a specific time when
the Plaintiff would have been rendered incapable of performing an accommodated
job.

20. As the determination of the Plaintiff’s los s of earnings and the incorporation of
contingenc ies falls within the ambit of judicial discretion , the Court has decided to
approach the peculiar facts of this case in the manner that follows . The Orthopaedic
Surgeon considered the Plaintiff incapable of performing his work as a security
officer three years after the accident occurred. The Occupational Therapist
considered that the Plaintiff was less suited to standing, sitting , and walking three
years after the accident occurred. The Occupational Therapist deferred to the
Industrial Psychologists to comment on whether the Plaintiff could continue in his
field of work. Had the Plaintiff not resigned, it is speculative as to when he would
have l eft his employment as an accommodated security officer who was earning his
pre-accident salary .

21. The Industrial Psychologists considered the opinions of the Orthopaedic
Surgeon and the Occupational Therapist. They suggested that the Plaintiff’s
employment prospects had been severely affected as a result of the accident -related
injuries, but neither suggested that the Plaintiff was unemployable. In the
circumstances, the Court will award the Plaintiff 50% of his past uninjured earnings
and apply a 30 % dedu ction (double the deduction contended for by the Plaintiff and
less than that contended for by the Defendant) to future uninjured earnings to
account for these variables. The past uninjured earnings amount to R 616 000
(R642 700-R26 700). The past loss of earnings is , therefore, R308 000. The future
loss of earnings is (R1 546 200 x 70%) = R1 082 340. The Court awards R308 000 +
R1 082 340, totalling R1 390 340, for the Plaintiff’s claim for loss of earnings.
Although there is a deviation from the recogn ised methods of calculating loss where
actuarial calculations have been p rovided, the approach provides a reasoned
method of dealing with the peculiar circumstances of this case, directed at yielding a
fair and just award .

22. The Court has already granted an order by agreement that addresses the
Plaintiff’s claims for general damages, future medical expenses, general costs, and
the costs of experts and Counsel. The Court understands that there is no claim for
past medical expenses . The Defendant con ceded liability for Plaintiff’s proven
claims. The Court has considered that the Plaintiff has incurred further costs since
the previous order. In the premises, the Court makes the order that follows.

ORDER

1. The Defendant shall pay the Plaintiff the sum of R1 390 340 (one million,
three hundred and ninety thousand, and three hundred and forty rands)
(‘the capital’) in settlement of the Plaintiff’s claim for loss of earnings and
final settlement of the Plaintiff’s claims ari sing from the accident involving
the Plaintiff on 28 July 2019 by way of electronic transfer to the Plaintiff’s
attorneys’ trust account .

2. The Plaintiff’s attorneys’ trust account details are as follows:

Bank: First National Bank
Account Holder: De Vries Shields Chiat Inc.
Branch: Portside
Account Number: 6[…]
Branch Code: 21065

3. The Defendant shall pay the capital within 180 days and interest on the
capital from 30 (thirty) days after this order, as well as any costs incurred in
collecting the capital.

4. Defendant shall pay Plaintiff’s taxed or agreed -upon party and party costs
incurred over and above the costs ordered by this Court in settlement of
Plaintiff’s other claims as they pertain strictly to the claim for loss of
earnings within 180 days of the finalisation or agreement of those costs
and interest at the prescribed legal rate from thirty days thereafter.


___________ _____________
Bhoopchand AJ
Acting Judge
High Court
Western Cape Division


Judgment was handed down and delivered to the parties by e -mail on 3 April 2025