2
Introduction
[1] The appellant , Annelize Smit, was a passenger in a motor vehicle which was
involved in a n accident on 18 December 2018. As a result of this accident , Ms.
Smit suffered an injury on the bladder , the kidney , as well as rib fractures and a
long contusion with pneumothorax on the right side. Ms. Smit claimed for general
damages and past and future loss of income from the respondent (RAF).
[2] On 13 September 2023, Mpofu AJ (court a quo) found that RAF is liable for 100
percent of Ms. Smit’s proven damages in the amount of R1 052 325.80 . The
court a quo further awarded a n amount of R3 000 000.00 to Ms. Smit as
compensation for her past and future loss of income. Discontent with the portion
of the order of the court a quo on past and future loss of earnings, Ms. Smit
applied for leave to appeal to the full court but the application was dismissed by
Mpofu AJ on 4 December 2023.
[3] Ms. Smit petitioned the Supreme Court of Appeal and leave to appeal to the full
court was granted by the Supreme Court of Appeal on 7 March 2024. The appeal
is only in respect of past and future loss of income.
Proceeding before court a quo
[4] The evidence before the court a quo was that, a t the time of the accident, Ms.
Smit was 24 years old. She worked for a cruise ship as a beautician and massage
lady before the accident. However, because of the accident and the extent of the
injuries she sustained, she went to live with her dad in a farm in the Northern
Cape. Her plans were that she would eventually go back to the cruise ship, and
she would work as a beautician or a masseuse.
[5] It was recorded that after completing Grade 12, Ms. Smit completed a three -year
National Diploma in Health & Skincare offered by the South African Association
of Health and Skincare Professionals from 2013 to 2015 . Between February 2016
to June 2016, Ms. Smit was employed as an Aesthetician by Steiner Onboard
Spa Disney Cruise Ship in Florida (USA), the Cayman Islands and Mexico. At
3
that time, s he was earning R31 100.00 per month which amounted to
R140 000.00 for that period.
[6] From July 2016 until the date of the accident, Ms. Smit was self -employed and
working as a beautician and reflexologist at her mother's medical clinic in
Kuruman. After deductions such as bank charges, she earned R78 053.98 over
the 12 -month period from January to December 2017, which is an average of
R6 504.50 per month.
[7] The expert report by the Occupational Therapist classifie d Ms. Smit’s job as a
beautician and reflexologist as mostly light physical work with an inherent
requirement of standing and/sitting for prolonged periods of time, making use of
both her left and right hand with strength especially when doing
massages/reflexology treatments.
[8] The Orthopaedic Surgeon recorded that Ms. Smit sustained the following
multiple injuries because of the accident :
a. An extensive period of loss of consciousnes s with retrograde and ante
grade amnesia ;
b. Multiple extensive facial scars, including a 12 cm scar above the left eye,
a 16 cm ragged scar over the mid right cheek, a 1 cm scar over left cheek
and a curved 7 cm ragged scar over the chin ;
c. Broken teeth in the upper and lower left sided jawbone that were not
repaired or corrected, wherefore her bite is off on the left side ;
d. A whiplash type injury to the cervical spine ;
e. Fractures of the 2 nd to 5t h left posterior ribs as well as a pneumothorax
of the chest ;
f. A fracture of the radius and ulna of the right forearm both treated with a
plate and screw fixation which remain in place . Further, t he alignment of
the right elbow and wrist joints are out as to length. The right forearm has
4
a 32 cm scar over the right ulna and a 19 cm long scar over the proximal
right radius;
g. An intra -articular fracture of the distal radius of the left wrist. A locking
solar plate was inserted. The fracture is mal -united with radial shortening,
ulnar plus and an unreduced radio -ulnar joint. There is a 12 cm long volar
scar over the left forearm ;
h. A fracture of the pubic ramus of the pelvis ;
i. A segmental mid -shaft fracture of the left femur. The fracture was treated
surgically with a locked intramedullary nail through a 17 cm long insertion
scar at the left hip and a 12 cm long anterior mid -shaft scar for reduction
of the segmental fracture and distal locking scars. There is malunion of
the femur with a rather marked leg length discrepancy ;
j. Bodily scarring from the accident as well as from the surgery performed.
[9] On the future management of Ms. Smit’s injuries , the Orthopaedic Surgeon
recorded that she has achieved maximum medical improvement . However , she
sustained a serious head injury and has persistent symptoms involving
headaches and alterations in her mental status, cognition, and highest integrative
functions (MSCHIF).
[10] The Orthopaedic Surgeon further recorded that Ms. Smit’s neck movement is not
restricted, but there are clear early degenerative changes visible on x -ray. The
need for neck surgery is not foreseen, but provision should be made for
conservative treatment and surgery at a later stage in her life. Ms. Smit would
require non-surgical treatment such as analgesics, anti -inflammatories, muscle
relaxants neck brace and physiotherapy.
[11] According to the Orthopaedic Surgeon , if Ms. Smit experiences an acute
exacerbation of pain, she might benefit from a short course of in -patient traction
treatment. In addition, s urgery would consist of further investigations into CT,
MRI scans and an anterior neck decompression with fusion with or without
instrumentation.
5
[12] The Orthopaedic Surgeon is of the opinion that Ms. Smit is unable to perform
bimanual beautician work due to her left wrist function and therefore she will not
be able return to the beautician profession.
[13] Ms. Smit reportedly could not perform any work, for approximately 12 months
post-accident, up to December 2018. She has not returned to her previous job
as beautician since the accident. She started working in January 2019 for her
father on his farm, assisting him with general administration and bookkeeping
functions.
[14] The Occupational Therapist describe d Ms. Smit’s admin work in an office
environment on the farm as mostly sedentary and partly light physical work. The
Occupational Therapist recorded that Ms. Smit can now only type effectively with
one hand while making use of her left hand in a limited fashion. Her ability to type
with both hands is diminished by at least 50 -60%.
[15] According ly, the Occupational Therapist accepted that Ms. Smit has been unable
to work effectively in her job as a beautician and that she may find it very difficult
to compete on the open labour market in an admin type of job.
[16] The Industrial Psychologist postulated that, but for the accident, Ms. Smit would
have secured employment as a beautician on board a cruise ship staffed by
Steiner Transocean by 1 March 2018 for an 8 -month period. Her earnings would
have amounted to R31,100 per month (assumed in February 2016 terms).
[17] It is further postulated that Ms. Smit would have been promoted to Spa Manager
in the Western Cape area by January 2024 at the age of 30 years, within 5 years
of being appointed as a beautician. Her earnings would have amounted to
R35 750.00 per month. As a spa manager, she would most likely have reached
her career ceiling at the age of 45 years, whereafter annual inflationary increases
should be accounted for, until normal retirement age at 65 years.
[18] The Actuary calculated Ms. Smit’s Net Past loss of earnings to be in the amount
of R541 687.00. The Net F uture Loss was calculated to be in the amount of
R5 795 790.00. This means that the Actuary postulated Ms. Smit’s past and
future loss of income to be in the amount of R6 337 477.00.
6
[19] After considering the above evidence, the court a quo ordered that Ms. Smit is
entitled to payment of R1 052 325.80 for general damages and R3 000 000.00
as compensation for her past and future loss of income.
Appeal proceedings
[20] As grounds for appeal, Ms. Smit argues that the court a quo erred in concluding
that:
a. the factual evidence regarding Ms. Smit’s pre-accident career path
promoted a round estimate approach on the total loss of income to be
awarded, instead of a more scientific /mathematical approach.
b. the addendum report of the Occupational Therapist regarding Ms. Smit’s
post-accident retirement age .
c. Ms. Smit may perform work in a coaching capacity, despite the findings
by the Occupational Therapist and Industrial psychologist, which remains
uncontested ; and that
d. the amount of R3 000 000.00 is fair and reasonable for compensation for
past and future loss of income.
[21] RAF argue s that the court a quo exercised a discretion regarding Ms. Smit’s
future loss of income, which is by nature speculative and a plunge into the
unknown. Further, Ms. Smit’s pre accident career path depended on various
factors that are variable and uncertain. Permutations on possible promotion were
highly uncertain and dependable on industrial trends.
[22] RAF argues further that t he higher contingencies applied are justified. According
to RAF, post-accident Ms. Smit is employable , and this was catered for in the
robust approach followed by the court a quo when assessing future loss of
income.
[23] Accordingly, RAF argues that the appeal should be dismissed with costs.
7
Whether this court can interfere with the amount awarded by the court a quo
[24] I am mindful that this court is considering this matter as a court of appeal. In this
regard, it is trite that where the amount of damages is capable of accurate
calculation, as is the case with special damages, a court of appeal will interfere
if it differs with the trial court on the exact amount of the award.1
[25] However, w here the quantification of the damages is a matter of estimation rather
than calculation, the court has a wide discretion to award what it considered in
the circumstances to be fair and adequate compensation.2 In such
circumstances, an appeal court is generally slow to interfere with the award by
the trial court. A court of appeal cannot simply substitute its own award for that
of the trial court.
[26] The Supreme Court of Appeal in RAF v Guedes3 stated the following regarding
the proper approach of an appeal court in appeals against awards of damages:
“The appeal court will interfere with the award of the trial court:
(i) where there has been an irregularity or misdirection (for example, the court
considered irrelevant facts or ignored relevant ones; the court was too
generous in making a contingency allowance; the decision was based on totally
inadequate facts).
(ii) where the appeal court is of the opinion that no sound basis exists for the award
made by the trial court.
(iii) where there is a substantial variation or a striking disparity between the award
made by the trial court and the award that the appeal court considers ought to
have been made. To determine whether the award is excessive or inadequate,
the appeal court must make its own assessment of the damages. If, upon
comparison with the award made by the trial court there appears to be a
"substantial variation" or a 'striking disparity', the appeal court will interfere.”
1 Administrator -General, SWA v Kriel 1988 (3) SA 275 (A) at 289.
2 Commercial union Ass Co of SA v Stanley 1973 (1) SA 699 (A) at 703. In this case the court of
appeal was of the view that the award by the trial court was too high, but it nevertheless declined
to interfere.
3 2006 (5) SA 583 (SCA) at para 8 .
8
[27] It is trite that once it has been concluded that interference is justified in terms of
the principles set out above, a court of appeal is obliged to interfere. Ms. Smit
contends that there exists no sound basis for the award made by the court a
quo because there has been a misdirection by the court a quo in that the court a
quo considered irrelevant facts and ignored relevant ones which resulted in the
decision being based on totally inadequate facts .
[28] In this regard Ms. Smit was correct. The court a quo did not set out the basis on
which it chose to depart from the actuarial evidence led of Ms. Smit’s loss of
income. No obvious reason for doing so leaps out from the record. In departing
from the strongly -reasoned and uncontested expert evidence placed bef ore it,
the court a quo disregarded relevant evidence without justification. That is plainly
a material misdirection.
[29] Accordingly, I am of the considered view that this court is justified to interfere with
the award of past and future loss of income made by the court a quo.
Whether the court a quo erred in the determination of the award for past and
future loss of income.
[30] When a claimant's loss of earning capacity is assessed, courts essentially use
one of two methods.4 The first is establishing a reasonable and fair amount based
on the proven facts and the prevailing circumstances. This entails the
determination of a lump -sum that the court regards to be fair and just in the given
circumstances. The second approach is to establish an amount by a
mathematical calculation based on the proven facts of the case.
[31] According to Millard ,5 courts are likely to follow the first approach in
circumstances where it is impossible to make a mathematical calculation, for
example, where the claimant is a minor who has not yet embarked on a career
4 Southern Insurance Association v Bailey NO 1984 (1) SA 98.
5 D Millard, 'Loss of earning capacity: The difference between the sum -formula approach and the
'somehow -or-other' approach', Law, Democracy & Development 2007, vol 11:1 ’.
9
path.
[32] In the same way, in Mashaba v Rood Accident Fund6 it was held that where
career and income details are available, the actuarial calculation approach is
more appropriate and a court must primarily be guided by the actuarial approach
before applying a mere robust approach .
[33] Considering the evidence, which was before the court a quo, I am of the view
that court a quo should have followed the actuarial calculation approach in
deciding on the amount of compensation for past and future loss of earnings
rather than the robust approach . It follows therefore that the court a quo erred in
awarding an amount of R3 000 000.00 as compensation for Ms. Smit’s past and
future loss of income.
Fair and reasonable compensation for past and future loss of income
[34] On the determination of the amount for compensation of past and future loss of
income, t he Supreme Court of Appeal in Road Accident Fund v Kerridge7
confirmed that any claim for future loss of earning capacity /income requires a
comparison of what the claimant would have earned had the accident not
occurred, with what a claimant is likely to earn thereafter.
[35] In Santam Versekeringsmaatskappy Bpk v Byleveldt8 the Appellate Division
stated the following :
“Basically, it is true, the compensation our Courts award is also for impairment of the
capacity to earn, but generally it is measured by reference to the loss of earnings. Where
the injured party was in normal employment at the time he was injured and wou ld have
continued in it but for his incapacitation, such employment is ordinarily regarded as
reflecting his earning capacity. His loss of earnings, actual or prospective, is, therefore,
usually taken as the true measure of the impairment of his earning ca pacity.”
[36] It is not in dispute that Ms. Smit sustained injuries in the accident relevant to this
6 [2006] JOL 16926 (T) at para 56.
7 [2018] ZASCA 151 at para 40.
8 1973 (2) SA 146 (A) .
10
matter and still suffers from the sequelae of those injuries. Her injuries limit her
physical ability to perform all the work -related tasks required of her as a
beautician and reflexologist . RAF conceded Ms. Smit is compromised post -
accident. It is accepted that Ms. Smit’s life has changed physically due to the
accident.
[37] The Industrial Psychologist opined that Ms. Smit would have been promoted to
Spa Manager in the Western Cape area by January 2024 at the age of 30 years,
within 5 years of being appointed as a beautician. Her earnings would have
amounted to R35 750.00 per month. As a Spa manager, she would most likely
have reached her career ceiling at the age of 45 years, whereafter annual
inflationary increases should be accounted for, until normal retirement age at 65
years.
[38] When the court considers an order for future losses, it is expected to use
contingency deductions to provide for any future circumstances that may occur
but cannot be predicted with precision. It is now trite that the deduction of
contingencies remains the prerogative of the court, in normal circumstances.
[39] It is accepted that the extent of the period over which a plaintiff's income has to
be established directly influences the extent to which contingencies must be
accounted for. With the unforeseen contingencies, the longer the period can
influence the accur acy of the amount deemed to be the probable income of the
plaintiff, the higher the contingencies must be applied.
[40] It should be noted that t he actuarial calculations are helpful, though not binding,
as the court has wide discretion to award what it considers fair and reasonable
compensation. That discretion must, however, be exercised on admissible facts,
and a court will not generally depart from prima facie reliable actuarial
calculations unless it identifies facts which justify doing so. For example, the court
will nearly always make or adjust a contingency deduction so that relevant and
foreseeable future event s which might otherwise have reduced a plaintiff’s future
earning capacity are considered.9 Contingencies have been described as 'the
vicissitudes of life, such as illness, unemployment, life expectancy, early
9 Burns v National Employers General Insurance Co Ltd [1988] 3 All SA 476 (C).
11
retirement, and other unforeseen factors'.10
[41] The actuarial calculations in this matter are based on a scenario that Ms. Smit’s
will be employable and earn the income she would have earned pre -morbid. I
have in this matter considered Ms. Smit’s circumstances and the content of the
expert reports, which are not contested by RAF. There is no basis on the record
for departing from the actuarial evidence: that a 15% contingency deduction on
the pre -morbid calculation and 45% on the post -morbid calculation of the
plaintiff's future uninjured earnings is fai r and reasonable.
Conclusion
[42] It is concluded that the court a quo erred by applying its discretion in favour of a
round estimate as opposed to the actuarially calculated amount. There was, in
my view, no reasonable substantiation for deviating from an award in the amount
actuarially calculated to be R6 337 477.00.
Costs
[43] The general rule in matters of costs is that the successful party should be given
his costs, and this rule should not be departed from except where there be good
grounds for doing so, such as misconduct on the part of the successful party or
other exceptio nal circumstances.
[44] Ms. Smit has been successful, and there is no reason why she should not be
entitled to costs .
10 Footnote 3 above at para 3.
13
APPEARANCES
Counsel for the App ellant : Advocate D Smit
Instructed by: Mr U Jordaan
Counsel for the Respondent: Advocate M Madasile
Instructed by:
Date of Hearin g: 14 May 2025
Date of Judgment: 20 June 2025
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties
/their legal representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The date for hand -down is deemed to be the
20th of June 202 5
14