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: 5492/2022
In the matter of :
DERRICK NAGEL PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Nagel v RAF (5492/2022) [2025]
Coram: Benade AJ
Heard: 16 April 2025
Delivered: This judgment was handed down in Court and electronically by
circulation to the parties’ representatives by e- mail and released to SAFLII. The date
and time for hand- down is deemed to be on 22 May 2025.
Summary: Adjudication of quantum only – plaintiff’s claim in respect of loss of
earnings .
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___________________________________________________________________
ORDER
1 The defendant is 100% liable for the plaintiff’s proven or agreed damages.
2 The defendant is to pay the plaintiff the sum of R 88 556 in respect of the plaintiff’s
claim for past loss of earnings.
3 The defendant is to pay the plaintiff the sum of R 1 567 111 in respect of the
plaintiff’s claim for future loss of earnings.
4 The defendant has already paid to plaintiff the sum of R800 000 in respect of the
plaintiff’s claim for general damages.
5 Payment will be made directly to the trust account of the plaintiff’s attorneys of
record, within 180 days from the date of this order, the details are as follows:
Holder : Pretorius Attorneys Incorporated
Bank and branch : ABSA Bank, Century City
Account number : 4[…]
Code : 632 005
Reference : PA 329
6 Interest a tempore morae shall be calculated in accordance with the P rescribed
Rate of I nterest Act 55 of 1975, read with s 17(3) (a) of the Road Accident Fund Act
56 of 1996, 180 days from the date of this order.
7 The defendant is ordered to furnish the plaintiff with the 100% undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act 56 of 1996, for the costs of 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 arising out of the injuries sustained by the plaintiff in the motor vehicle accident which occurred on 22 December 2019. 8 The plaintiff entered into a valid contingency fee agreement with Pretorius
Attorneys Incorporated on 3 May 2021. The defendant is to pay the plaintiff’s agreed or taxed h igh court costs as between party and party, such costs to include the
plaintiff’s reasonable travel and accommodation costs to attend appointments and trial, the preparation and qualifying fees of the expert consequent upon obtaining the plaintiff’s reports and addendum reports, inter alia by:
8.1 Dr Labuschagne (neurosurgeon);
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8.2 Dr Pienaar (neuropsychologist);
8.3 Dr van Biljon (occupational therapist);
8.4 Dr E Jacobs (industrial psychologist);
8.5 Mr R Kock (actuary);
8.6 The costs of counsel on Scale B and trial costs up to 16 April 2025, including
costs of the subsequent h eads of a rgument filed.
JUDGMENT
Benade AJ
Introduction [1] The matter was set down for adjudication of quantum only, specifically the
plaintiff’s claim in respect of loss of earnings namely the plaintiff’s claim for past loss of earnings and his claim for future loss of earnings.
[2] The parties managed to settle the dispute relating to merits, the undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act 56 of 1996 in respect of future
medical expenses, as well as the claim relating to general damages.
[3] The plaintiff proceeded with an application in terms of rule 38(2) of the
Uniform Rules of Court which was granted by me in chambers on 16 April 2025. The
parties then agreed to submit h eads of a rgument in respect of the contingencies the
court needs to apply to the calculation, and which heads have duly been filed. This court is only called upon to determine the contingency that needs to be applied to the calculation of the pre- morbid future loss of earnings.
Precedent
[4] The determination of allowances for contingency involves a process of
subjective impression and/or estimation rather than an objective calculation. Contingencies of whatever nature generally serve as a control mechanism to adjust the loss to the circumstances of the individual claimant in order to achieve justice
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and fairness to the parties.1
[4] The provision for contingencies falls squarely within the subjective discretion
of the trial judge as to what is reasonable and fair.2 In coming to a contingency
calculation, there are no fixed rules and direct evidence cannot be given by an
actuary. Actuarial evidence only serves as a guide to the court.3
Application
[5] The plaintiff was 27 years at the time of the accident and will now be turning
33 years of age in December 2025. He planned to retire at 65 years old, but is now not able to work with the same earning capacity and will in all likelihood become
unable to sustain employment – as confirmed by the joint minutes compiled by the
parties’ experts. The period of risk can be calculated at 32 years. The industrial
psychologist noted that the life expectancy of the plaintiff will not be influenced by the collision.
[6] In a joint minute dated 20 May 2024 between industrial psychologist (Dr E J
Jacobs and Mr S J Sethintsha) , they took note from the medical experts that the
plaintiff sustained orthopaedic injuries and/or moderate head injury and agreed that
the plaintiff is no longer an equal competitor in the open labour market with his opportunities curtailed. Dr Jacobs had the opinion that the plaintiff might struggle to sustain employment as he already lost his job several times after the accident. For
calculation purposes , they agreed to consider his pre -morbid income of R66 000 per
annum in 2019 (with no progressions) as his residual earning capacity, but recommended a further contingency deduction due to the risks, namely the risks that he may lose his job and face periods of unemployment.
[7] Dr Everd Jacobs, an industrial psychologist , in a report , provided the
information that the plaintiff completed grade 8 at Orkney High School and was , at
the time of the accident , employed as a farmworker at Armoed Boerdery earning R5
1 Hall v Road Accident Fund [2013] ZAGPJHC 129 para 52.
2 Southern Insurance Association v Bailey 1984 (1) SA 98 (A) at 116 .
3 Shield Insurance v Hall 1976 (4) SA 431 A at 443A.
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500 per month. He was not able to work for about two months after the accident and
his employer asked him to resign at the end of February 2020 mainly due to his shoulder injury as he could not handle the heavy loads and perform normal functions on the farm. He thereafter , around February 2021, obtained work as assistant
mechanic in Bultfontein where he is performing lighter duties. He has no formal qualifications as mechanic and indicated that he has regular headaches. At the time of the report , he has managed to sustain that job for almost two years.
[8] The industrial psychologist also pointed out that , in accordance with Dr J J
Labuschagne (the neurosurgeon) , the claimant suffered moderate head injury with
secondary residual memory and concentration disturbances. He also displays
neurocognitive effects from the head injury. A neuropsychologist pointed out that he
sustained a traumatic brain injury (with skull -base fracture).
[9] Ms A Jansen (an occupational therapist) noted that his range of movement in
the right shoulder is moderately reduced, he favours the left leg for loading and
therefore presents with an asymmetrical posture. He also has a limping gait and his
right-hand grip strength score is lower than the norm for his age.
[10] It is clear that , although the plaintiff is currently employed, he is not on par
with his peers in the open labour market and is an unfair competitor in the open labour market. Should he lose his current employment , it might be hard to find
another sympathetic employer in his line of work given his physical and mental disabilities. He is best -suited for employment in a back -friendly sedentary
environment but it is unlikely that he will obtain and sustain a sedentary position requiring some administrative capacity and skills as he has no such skills or experience to offer the labour market and he has low schooling. Before the injury , he
was destined to use his physical capacity to earn a living doing unskilled to semi -
skilled work. This is now restricted as a result of the accident and he is in danger of unemployment. Should he lose his job, he will struggle to find alternative jobs.
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[11] Having considered the heads of argument and submissions by M s Bornman
for the defendant and M s Sander for the plaintiff, I am of the opinion that the
actuarial calculation as done by Koch Consulting Actuaries CC is appropriate in the
circumstances, with 5% contingency deduction in respect of past loss of income, and 15%/50% contingency deduction in respect of the future loss of income.
Order
[13] In the result , the following order is made:
1 The defendant is 100% liable for the plaintiff’s proven or agreed damages.
2 The defendant is to pay the plaintiff the sum of R 88 556 in respect of the plaintiff’s
claim for past loss of earnings.
3 The defendant is to pay the plaintiff the sum of R 1 567 111 in respect of the
plaintiff’s claim for future loss of earnings.
4 The defendant has already paid to plaintiff the sum of R800 000 in respect of the
plaintiff’s claim for general damages.
5 Payment will be made directly to the trust account of the plaintiff’s attorneys of
record, within 180 days from the date of this order, the details are as follows:
Holder : Pretorius Attorneys Incorporated
Bank and branch : ABSA Bank, Century City
Account number : 4[…]
Code : 632 005
Reference : PA 329
6 Interest a tempore morae shall be calculated in accordance with the P rescribed
Rate of I nterest Act 55 of 1975, read with s 17(3) (a) of the Road Accident Fund Act
56 of 1996, 180 days from the date of this order.
7 The defendant is ordered to furnish the plaintiff with the 100% undertaking in
terms of s 17(4) (a) of the Road Accident Fund Act 56 of 1996, for the costs of 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 arising out of the injuries sustained by the plaintiff in the motor vehicle accident which occurred on 22 December 2019.
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8 The plaintiff entered into a valid contingency fee agreement with Pretorius
Attorneys Incorporated on 3 May 2021. The defendant is to pay the plaintiff’s agreed
or taxed h igh court costs as between party and party, such costs to include the
plaintiff’s reasonable travel and accommodation costs to attend appointments and trial, the preparation and qualifying fees of the expert consequent upon obtaining the plaintiff’s reports and addendum reports, inter alia by:
8.1 Dr Labuschagne (neurosurgeon);
8.2 Dr Pienaar (neuropsychologist);
8.3 Dr van Biljon (occupational therapist);
8.4 Dr E Jacobs (industrial psychologist);
8.5 Mr R Kock (actuary);
8.6 The costs of counsel on scale B and trial costs up to 16 April 2025, including
costs of the subsequent h eads of a rgument filed.
__________________
BENADE, AJ
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Appearances
For the plaintiff: I Sander
Instructed by: Van Wyk & Preller Attorneys
For the defendant : C Bornman
Instructed by: State Attorney, Bloemfontein.