2
[3] At the time of the pro ceedings, the defendant was not represented before court,
no appear ance was made. The court satisfied itself that the defendant had due
knowledge of the proceedings as the no tice of set down was served on the
defendant and defendant was aware of the proceedings. The proceedings went
ahead in the absence of the defendant.
[4] On the day of the hearing the plaintiff tendered viva voice evidence . The plaintiff
requested that the aff idavits of the medical experts and actuary be accepted by
this Court as evidence in terms of Rule 38 (2) of the Uniform Rules of Court.
[5] I made a ruling that the affidavits and actuarial report are accepted in terms of
Rule 38(2).
Factual Background
[6] The plaintiff is an adult male and he is 49 years old. On the 22 July 2017 in the
vicinity of D1344 and Beest Kraal Street, Lethabong, Rustenberg, the plaintiff
was involved in a motor ve hicle collision whereby he was the passenger. The
said motor vehicle’s driver lost control of the vehicle , the vehicle had hit a rock,
and the vehicle overturned. At the time of the accident the plaintiff was a
passenger seated at the back of the vehicle, and he su stained injuries as a result
of the vehicle overturning.
[7] The plaintiff provided testimony that he was thrown from the vehicle, landed on
the ground on his side and injured his shoulder. He wa s taken from the accident
scene by a private vehicle to Pholos ong Hospital and later to a private hospital
run by medi -clinic (Impala) by ambulance.
[8] The ho spital report notes that the plainti ff sustained a fracture to his left clavicle
(the plaintiff is rig ht hand dominant). It is submitted that the plaintiff received
clinical and radiological examinations ; and he un derwent an operation . He was
treated with a left arm s ling till he was pain free. The plaintiff was given pain
management and was admitted in hospital for four days.
[9] The accident report, Road Accident F und form (RAF1 form), medical certificates ,
ambulance report, hospital records, expert reports and the plaintiff’s 19 (f)
3
affidavit were all submitted as evidence , filed on record and confirmed by the
plaintiff on the day of the hearing.
Merits
[10] The fact that the plaintiff was a passenger is supported by his statutory affidavit
filed in terms of section 19(f) of the Road Accident Fund Act 56 of 1996.
[11] On the basis that the plaintiff was a passenger, he needs to prove 1% negligence
by the insured driver in support of his claim. As found in Groenewald v Road
Accident Fund1 on a finding that the insured driver was 1% negligent, the
defendant is liable for 100% of the plaintiff’s proven damages.
[12] The accident report reflects that the insured driver caused the motor vehicle
collision.
[13] In the premises, having read the totality of evidence and heard the plaintiff and
plaintiff’s counsel, I am satisfied to grant merits 100% in favour of the plaintiff as
such is fair and reasonable.
Quantum
[14] In respect of quantum, this matter only deals with the determination of the issue
of loss of income and future medical expenses in terms of Sec tion 17(4)(a) of the
Road Accident Fund Act. The plaintiff testified that he was examined by various
experts and the reports thereof were filed on re cord.
[15] The plaintiff appointed the following experts :
15.1 Industrial Psychologist (Mrs B Selepe)
15.2 Occupational Therapist (Ms SD Mogol a)
15.3 Orthopaedic Surgeon (Dr P Kumbirai)
15. 4 Radiologist (Drs Mkhabele & Indunah)

1 (74920/2014) [2017] ZAGPPHC 879 (5 October 2017) at para 3.
4
15.4 Actuary (Mr J Sau er)
[16] The defendant has not appointed any exp erts. In the circumstances, the plaintiff’s
expert reports were not contested.
Work Background
[17] It is submitted by the plaintiff that he went to school up to gra de 8 in Mozambique
and never thereafter f urthered his studies.
[18] Before the accident the plaintiff reported that he was working as a a farm worker
at Red Bank from 1997 -2006. His duties and responsibilities were to do ge neral
farm work, including water ing, ploughing and trimming trees. His monthly earning
at that time was approximately R750.00 per month. He stopped working at Red
Bank after receiving a better job offer.
[19] The plaintiff stated that he was able to secure another post at Hernic mine as a
drill operator from 2007 -2011. His duties and responsibilities were to drill rocks
in the mine, and he earned approximately R6000.00 per month. He managed to
secure a better job offer at Impala Platinu m Mine.
[20] At the time of the accident in 2017, the plaintiff was employed as a waterjet
operat or at Impala Platinum Mine. His duties and responsibilities were to drill
rocks and clear the tunnel underground. The plaintiff stated that his job involved
sitting, bending and crawling sometimes. The plaintiff submitted that he was
earning approximately R14 000 per month and his deductions included tax, UIF
and a provident fund. It is submitted that the plaintiff started working at Impala
Platin um mine from 4 December 2012 to July 2017.
[21] It is submitted by the plaintiff that after his accident, he could not return to work,
and he was given disability payment from a disability fund from the 31 August
2017 till March 2018. The plaintiff was provided with a medical incapacity
certificate on the 26 April 2018. The plaintiff has been unemployed since ; at the
time of his expert assessments, he was unemployed and dependent on his
partner.
Medical Reports
5
a) Orthopaedic surgeon
[22] Dr P Kumbirai , the plaintiff’s Orthop aedic surgeon noted the following in regard
to the plaintiff’s employability:
“[T]he claimant sustained a fracture of the left clavicle that was treated conservatively.
The fracture has united. The claimant still complains of pain. It is my opinion that this
pain may be managed be analgesia . No future surgery is foreseen. The pain in the left
shoulder will limit his choice of occupation as occupations which require lifting of heavy
weights will agg ravate his symptoms . He will not be able to compete fairly for job s on
the open labour market. Although, I have calculat ed his WPI at 3%, it is my considered
opinion, considering the factors mentioned above, t hat the injuries have resulted in
serious long -term impairment/loss of body function.”
b) Occupational Therapist
[23] The plaintiff’s occupational therap ist is Ms SD Mogola noted the following in
regard to the plaintiff’s employability:
“At the time of the accident, Mr Shaviri was employed as a Waterjet Operator. He never
returned to work and was declared medically unfit to work. At the time of the evaluation,
he wa s unemployed. His job falls within heavy strength work; the assessment test
findings indicate that he can cope with light strength work frequently (34-66%) and not
constantly (67 -100%). This, from a physical perspective p oint of view, Mr Shaviri has not
retained the physical capacity to cope with his pre-accident job demands as a Waterjet
Operator, as the job core requirements are constant use of upper limbs, doing forward
reaching, and handling + -35kg heavy weights, which he cannot do because of the injury
in the left upper li mb. The writer also notes that Mr Shaviri relied on his physical abilities
to secure employment since he does not have higher formal qualifications, thus it will be
difficult for him to secure any employment that is below his current strength o f sedentary
to light strength work, as h e is disadvantaged to do all the jobs that are above his current
strength.
Taking into account the clinical findings, his poor socioeconomic background, his age
and his vast wor k experience in the mining sector. It is therefore evident that the injuries
sustained from t he accident have disadvantaged Mr Shaviri’s employment prospects as
already mentioned thus, he is considered an unequal and unfair competitor in the open
labour market . The writer opines that Mr Shaviri should receive the recommended
6
treatment in the body of this report, such as the implementation of ergonomics principles
at home, training on pain alleviation of his da ily living and enjoy the quality of life as far
as his symptoms allow th us counterfeiting any further deterioration and ag gravating the
pain.”
c) Industrial Psychologist
[24] The plain tiff’s Industrial Pshchologist, Dr Selepe provided the scenario that Mr
Shaviri before the accident would have been expected to continue w orking as a
Waterjet Operator/Rock Drill Operator without challenges or limitations.
Considering his educational background , working experience, and skills it is clear
that the Mr Shaviri relied on his physical aptitude and expertise to perform his
duties. His income could have been expected to increase and still be able to
function as expected.
[25] At the t ime of the accident the plaintiff was 41 years old with a Grade 8 scho oling
and a Jet Operator/Rock Drill operator certificate. The industrial psychologist
opined that with more experience and on the job training, Mr Shaviri would have
enjoyed upwar d mobility, and his earnings wold have likely reached a care er
ceiling at Paterson B5/C1 Median basic salary within the form al sector around
the age of 45 years. Thereafter, his earnings would most likely have increased
through annual inflationary pressure s until normal retirement age of 65 yea rs.
[26] In conclusion, the Industrial Psychologist submitted that given the above -
mentioned scenarios , in the absence of serious health impairment and with his
willingness to study fu rther, personal work capacity and strength intact, the
plaintiff would have been able to exercise his career choice, moving from one job
to the next , depending on the availability of jobs, academic background and w ork
experience in the field. The industrial psychologist further opined that this means
that the plaintiff’s career options would n ot have been impacted upon, suggesting
that the plaintiff would have been able to exercise his career choice the same
way as his peers. This would have been dependent on his aspiration, motivation,
drive to study and acquire skills and education. Furthermore, availa bility of jobs
in his field would have played a significant r ole in employment prospects. It is
submitted that the plaintiff would have been able to function as expected until
7
such time as he reac hed normal retirement age or even working beyond, with his
strength intact.
d) Current conditions and main complaints
[27] It is submitted by the plaintiff that the injuries suffered by the plaintiff in the motor
vehicle collision have led to him sustaining consequences that have affected his
general functioning in daily life, inclusive of the amenity of the enjoyment of life .
The following complaints are noted:
27.1 pains on the left arm with prolonged usage;
27.2 short temper;
27.3 anger and stress;
27.4 he is forget ful;
27.5 cannot carry heavy weights due to left sh oulder pain;
27.6 cannot do heavy duties;
27.7 inclement weather causes pain in the left shoulder;
27.8 lower back pains;
27.9 cannot sleep on both sides;
27.10 can do maintenance tasks, however with difficulties;
27.11 he feels useless as he is no longer able to provi de for his family;
27.12 he cannot do the pleasurable activities that he used to do.
Future medical expenses
[28] The plaintiff’s occupational therapist submitted that it is recommended that the
plainti ff in the future do two to three hours of occupational therapy ; do an
ergonomic assessment at home to aid in correct postures to use during task
8
participation and relevant assistiv e devices to be use d; and to educate the
plaintiff regarding pain -alleviating strategies and joint prote ction principles.
[29] The plaintiff’s orthopaedic surgeon submitted that the plaintiff continues to suffer
the inconvenience and discomfort of chronic pain from the left shoulder. In the
opinion of the orthopaedic surgeon, the plaintiff ’s pain ma y be managed by
analgesia and no future surgery is foreseen.
[30] In the premises, I am satisfied that the plaintiff shall be entitled to an undertaking
in terms of Section 17(4)(a) of the Road Accident Fund Act in respect of all
accident related medical treatments and services rendered.
Loss of income calculations
[31] The plaintiff’s Actuary, Mr JJC Sauer calculated the plaintiff’s potential and actual
post-collision earning contingencies. He applied a 5% pre -morbid contingency
and a 5% post -morbid contingency. When the plaintiff received his disability
payment from August 2017, it is noted by the Actuary that the plaintiff received
50% percent of his salary . After applying contingencies above , the plaintiff’s
Actuary submitted the following calculations :
31.1 Past Loss of Income: Estimated at R1 284 258 base d on pre -collision
earnings . Past loss of income, post morbid is R 58 175. The total in the
difference of the loss is R1 226 083.
31.2 Future Loss of Income: Plaintiff’s future earnings would have been R3
791 261 but are now estimated at zero leading to a total loss of R3 601
698.
31.3 The total Loss of Income is R4 827 781 and the total loss minus the
effect of the RAF cap (given the contingen cy values applied) is R4 81 2
262.
Legal Framework
9
[32] In Southern Insurance Association v Bail ey N.O2 the court stated:
“Any enquiry into damages for loss of earning capac ity is of its nature speculative
because it involves a prediction as to the future, without the benefit of crystal balls,
soothsayers, augurs or oracles. All that the court can do is to make an estimate, which
is often a v ery rough estimate, of the present values of the loss. It has been open two
possible approaches. One is for the Judge to make a round estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind
plunge into the unknown. The other is to try to make an assessment, by way of
mathematical calculations, on the basis of assum ptions resting on evidence. The validity
of this approach depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable to the speculative. It is manifest that either appr oach
involves guesswork to a greater or lesser extent. But the court cannot for this reason
adopt a non possumus attitude and make no award .
In a case where the court has before it material on which an actuarial calculation can
usefully be made . I do not think that the fi rst approach offers any advantage over the
second. On the contrary, while the result of an actuarial computation may be no more
than an ‘informed guess’ it has the advantage of an attempt to ascertain the value of
what was lost on a logical basis; whereas the trial Judge’s ‘ gut feeling’ (to use the words
of appellant’s counsel) as to what is fair and reasonable is nothing more t han a blind
guess.”
[33] Taking into account the above stat ement of the court, I have before me in this
matter materi al on which an actuarial calculation has been made ; I am supportive
of the actuarial approach because th e actuarial approach has the advantage of
an attempt to ascertain the value of a loss of income on a lo gical, mathematical
and informed basis as opposed to a judicial robust approach or guesswork. Thus,
I will be guided by the actuarial approach.3
[34] A detailed approach on the determination on con tingencies was set out in the
case of Ralph v Road Accident Fund4 as follows:

2 1984 (1) SA 98 ( A) at 113F -114A and 113H -114E.
3 Mashaba v Road Accident Fund 2006 JOL 16926.
4 (3069/2018) [2023] ZAFSHC 102 at para 20.
10
“The court in Oosthuize n v Road Accident Fund 2015 JDR 1717 (GJ) gave a usefu l
summary of case law on contingencies, and I refer extensively as follows:
‘Matters which cannot otherwise be provided for or cannot be calculated
exactly, but which may impact up on the damages claimed, are considered to
be contingencies, and are usually provided for by deducting a state d
percentage of the amount or specific claim s. (De Jongh v Gunter 1975 (4) SA
78 (W) 80F).
Contingencies include any possible relevant future event which might cause
damage or a part there of or which may otherwise influence the extent of the
plaintiff’s damage. ( Erdmann v SANTAM Insurance Co Ltd 1985 (3) SA 402
(C) 404 -405; Burns v National Employers General Insurance Co Ltd 1988 (3)
SA 355 (C) 365).
In a wide sense contingencies are described as “the hazards that normally
beset the lives and circumstances of ordinary people.” ( AA Mutual Insurance
Association Ltd v Van Jaarsveld 1974 (4) SA 729 (A); Southern Insurance
Association v Bailey 1984 (1) SA 98 (A) 117). Contingen cies have also been
described as “unforeseen circumstances of life.” ( De Jongh v G unther 1975 (4)
SA 78 (W) 80F).
The percentage of the contingency deduction depends upon a number of factors and
ranges between 5% and 50% depending upon the facts of the case. (AA Mutual
Association Ltd v Maqu la 1978 (1) SA 805 (A) 812; De Jongh v Gunther 1975 (4) SA 78
(W) 81, 83, 84D; Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W) 393; Van
der Plaats v SA Mutual Fire & General Insurance Co Ltd 1980 (3) SA 105 (A) 11 4-115A -
D).
Contingencies are usually taken into account over a particular period of time, generally
until the retirement age of the plaintiff . (Goodall v President Insurance C o Ltd 1978 (1)
SA 389 (W) 393; Rij NO v Employers’ Liability Assurance 1964 (4) SA 737 (W);
Sigournay v Gillbanks 1960 (2) SA 552 (A) 569; Smith v SA Eag le Insurance Co Ltd
1986 (2) SA 314 (SE) 319).
Often what is described as a “sliding sc ale” is used, under which it is allocated a “1/2%
for year to retirement age, i.e 25% for a child, 20% for a youth and 10% in middle a ge.”
(Goodall v President Insurance Co Ltd 1978 (1) SA 398 (W) and Road Accident Fund v
11
Guedes 2006 (5) SA 583 (A) 588D -C.) Likewise, see Nonwali v Road Accident Fund
(771/2004 ) [2009] ZAEC MHC 5 (21 May 2009) para 23).
Coleman J pro vided a useful exposition of Burger v Union National South British
Insurance Co 1975 (4) SA 72 (W) 75 of the approach to be adopte d by the court:
“A related aspect of the techni que of assessing damages is this one; it is
recognised as prop er, in an appropriate case, to have regard to relevant events
which may occur, or relevant conditions which may arise in the future . Even
which it cannot be said on a preponderance of probability that they will occur
or ari se, justice may require that what is called a contingency allowance be
made for a possibility of that kind . If, for example, there is acceptable evidence
that there is a 30 percent change that an injury to the leg will lead to a mputation,
that possibility is not ignored because 30 percent i s less than 50 percent and
there is there fore no prov ed preponderance of probability that there will be an
amputatio n. The contingency is allowed for by including in the damages a figure
representing a percentage of that which would have been included if
amputation had been a certainty, That is not a very satisfactory way of dealing
with such difficulties, but no better way exists under our procedure.”
But the difficulty with this approach was appreciated by Margo J in Goodall v President
Insurance Co Ltd 1978 (1) SA 389 (W) at 392H:
“In the assessment of a proper allowance for contingencies, ar bitrary
considerations must inevitably play a part, for the art of scienc e of foretelling
the future, so confidently practice d by ancient prophets and soothsayers, and
by modern a uthors of a certain type of almanac, is not numbered amo ng the
qualifications for judicial office.”
[35] In the present matter the determination of contingencies includes factors such as
the plaintiff ’s age, the extent of injuries, the prospect of him finding employment
suitable to his diminished employment capacity, retirement age should he have
continued with his employment, his qualification s and his mental health.
[36] The plaintiff in this matter has sustained a left clavicle injury which has resulted
in him losing his employment permanently . After the motor vehicle collision, he
was place d on di sability payment by his previous employer for a year. What is
common cause throughout the expert reports is that the plaintiff has no tertiary
12
education and only achieved a grade 8 schooling which meant he relied on his
physical strength to gain employment. He was thus dependent on his physical
strength which he no longer has after the motor vehicle collision which has
impeded his ability to find work. At the time of the accident the plaintiff was 41
years old, at the time of this hearing he is 49 years old, with only about 16 years
to the retirement age of 65 years old ; the age he most likely would have worked
to. He presently has limited opportu nities to find work as he has no matric
certificate. Taking into account the plaintiff's injury he would no longer be able to
function in his previous employment capacities or field of employment. He was
expected to reach his peak earning capacity at the age of 45 years old . The
injuri es sustained by the plaintiff will leave him in pain frequentl y. The plaintiff
also suffer s from mental health injuries which include stress , anger and short
temper.
[37] A total loss of income of R4 812 26 2 is submitted by the plaintiff to be a
reasonable compensation to the plaintiff for the loss of income as a result of the
motor vehicle collision .
[38] Having regard to the totality of evidence and the individual circumstances of the
plaintiff, I am satisfied that plaintiff’s claim for loss of income be upheld. However,
regarding the contingency application for future loss of income , for the reasons
set out above, I find that an application of a 15% contingency would be more
appropriate. This leads to a quantum of R4 448 654 .
Costs
[39] It is submitted by the plaintiff that the defendant be ordered to pay all the plaintiff’s
party and party costs on a High Court scale which shall include the costs of one
Counsel on Scale B; the costs of all medico -legal reports, the costs of plaintiff’s
attorneys and the plaintiff’s cost of attending all medico -legal experts.
[40] The gen eral principle is that a party that is successful in litigation, is entitled to its
costs occurred in the litigatio n proceedings. I find no reason to deviate from this
general principle. Thus, the defendant is to pay the costs of the plaintiff on a a
scale B.
13
Order
[41] In the premises, I make the following order:
41.1 The plaintiff’ s merits claim is upheld, and merits are found
100% in favour of the plaintiff .
41.2 The defendant is liable to pay 100% of the plaintiff’s proven
damages arising from the motor vehicle accident which
occurred on 22 July 2017.
41.3 The plaintiff’s claim for loss of income is upheld.
41.4 The defendant shall pay the sum of R4 448 654 (Four
Million Four Hundred and Forty -Eight Thousand Six
Hundered and Fifty four Rand ) for loss of income to the
plaintiff’s attorneys , payable by direct transfer into their
trust account.
41.5 The defendant is directed to furnish the plaintiff, within 14
days of this order, with the undertaking in terms of Section
17(4)(a) of Act 56 of 1996, for t he payment of 100% of the
costs of the plaintiff’s for future accommodation in a
hospital or nursing home or treatment of or rendering of a
service to him or supplying good s to him , unlimited to the
the expenses incurred thereunder, arising out of the
injuries sustained by him in the mo tor vehicle collision
which occurred on 22 July 2017, after such costs have
been incurred and upon proof thereof.
41.6 The future of general damages is postponed sine die.
41.7 The defendant is ordered to pay the plaintiff’s taxed or
agreed party and party costs on a High Court Scal e B,
which costs shall include cost of counsel and experts.
15