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JUDGMENT
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MARUMOAGAE AJ
1. This is a delictual claim for damages , in which the plaintiff seeks to hold the
defendant liable for the injuries he sustained in a motor vehicle collision that
occurred on September 7, 2019 , in which he was a passenger .
2. The defendant conceded that the collision resulted from the sole negligence of its
insured driver. It offered to settle the issue of negligence concerning the motor
vehicle collision , as the insured driver was solely negligent in causing the motor
vehicle accident.
3. The defendant proceeded to make an offer for the payment of general damages to
the plaintiff in the amount of R1 500 000.00, which the plaintiff accepted. The issue
the court is called to determine is the amount of past and future loss of earnings,
as well as future medical and related expenses that the defendant should pay to
the plaintiff .
4. The plaintiff claims an amount of R 2 ,581,178.45 for past and future loss of
earnings , and that the defendant be ordered to make an undertaking to cover the
plaintiff’s future medical and hospital expenses.
5. The plaintiff quantified his claim through the assistance of six experts : an
orthopaedic surgeon, a neurosur geon, a clinical psychologist, an occupational
therapist, an industrial psychologist, and an actuary. The defendant did not object
to the expertise and findings of any of these experts. The reports of these experts
were admitted into evidence.
6. The plaintiff’s case is that:
6.1. He was born on December 20, 1993. On 7 September 2019, he was a
passenger in a motor vehicle driven by an insured driver . The insured driver
lost control of the motor vehicle, causing it to overturn.
6.2. Due to this accident, the plaintiff was hospitalised and received medical
treatment. He suffered severe bodily injuries consisting of left parietal
contusion haemorrhage, maxilla and nasal bone fracture, T1 traverse
process fracture. The plaintiff contends that he was disabled and disfigured ,
and suffered pain and loss of amenities of life.
7. The orthopaedic surgeon ’s report indicated that due to the accident , the plaintiff :
7.1. sustained the following injuries: head lacerations; upper lip lacerations;
teeth missing; back fracture; and both hands abrasions ;
7.2. experiences intermittent back pain, which is exacerbated by prolonged
sitting and lifting objects ;
7.3. pain started after the accident and is associated with his left lower limb pins
and needles sensation ;
7.4. experiences recurring headaches and fits ;
7.5. enjoyed playing soccer before the accident but stopped doing so afterward ;
7.6. is currently taking pain medication that he collects from the clinic .
8. The orthopaedic surgeon noted further that the plaintiff :
8.1. did not show any sign of systemic disease ;
8.2. had multiple small scars on his scalp ;
8.3. had no difficulty sitting and that there was no deformity , but recorded
paraspinal muscle tenderness with no sign of stenosis ;
8.4. suffered pain following injuries he sustained in the accident and continues
to suffer the discomfort o f chronic pain in his back ;
8.5. radiculopathy is affecting his sensation ;
8.6. has signs of nerve roots compression, which is causing his limb to have
reduced sensation.
8.7. pain can be managed with analgesia and physiotherapy , however, the
radiculopathy may progress to warrant decompression after MRI scan and
nerve conduction studies;
8.8. may later develop post -traumatic spondylosis of the back that may result in
decompression and fusion after MRI scan , leading to his pai n becoming
chronic ;
8.9. will not have normal back function like he did before the accident.
9. According to the orthopaedic surgeon , the plaintiff :
9.1. will experience difficulties with employment that requires walking, standing,
and lifting objects ;
9.2. will also have difficulties engaging in activities that require walking, standing,
and lifting objects as he did before the accident ;
9.3. orthopaedic injuries sustained in the accident are not likely to influence the
plaintiff’s natural survival ;
9.4. will need to consult various medical practitioners intermittently , and will need
to purchase prescription analgesics and steroidal anti-inflammatory drugs
periodically to manage his pain .
10. The neurosurgeon’s report indicated that the plaintiff was healthy before the
accident , and due to the accident he:
10.1. has difficult y with concentration and memory disturbances with
headaches ;
10.2. has epileptic seizures;
10.3. experienced head trauma , loss of awareness , and amnesia ;
10.4. sustained severe head injury and teeth fracture ;
10.5. has difficulty performing the tasks he performed before the accident;
10.6. will need future medical treatment which will include costs associated with
analgesia, physiotherapy, psychotherapy, general practitioner, epilepsy
treatment, MRI sca n, and thoracic fusion revision,
11. The clinical psychologist ’s report indicated that before the accident, the plaintiff was
physically and psychologically healthy , with no history of psychiatric or
psychological disorders and no previous head trauma, loss of consciousness ,
epilepsy, or neurocognitive deficits. After the accident, he sustained headaches,
seizures, and back pain.
12. The clinical psychologist opined that the plaintiff:
12.1. is likely suffering from post -traumatic stress disorder with major depression
and severe feelings of anxiety due to the accident ;
12.2. has been negatively impacted by the accident and will need psychological
assistance to address his difficulties ;
12.3. cognitive deficits are likely to impact his future academic and occupational
productivity ;
12.4. mental challenges are expected to have a negative impact on his
occupational and interpersonal functioning a s well as his enjoyment of life.
13. The clinical psychologist noted that at the time of the accident, the plaintiff was
working as a general worker at a construction company. The plaintiff’s highest level
of education is standard 4. The occupational therapist ’s report indicated that at the
time of the accident, the plaintiff earned approximately R 4,500.00 .
14. The occupational therapist noted that the plaintiff’s work required prolonged
periods of standing, walking, and dynamic use of both lower and upper limbs, as
well as bilateral handling of heavy load s. Further, it was justi fied based on his
injuries that the plaintiff never resumed his employment post the accident.
15. According to the occupational therapist , the plaintiff:
15.1. after the accident, could not lift or carry heavy items and he struggled to
stand or walk for prolonged periods , and cannot chew or bite hard food, and
consume too cold or too hot beverages ;
15.2. no longer has the physical and functional capacity to execute his pre -
accident occupational duties effectively;
15.3. currently presents with a residual physical work capacity to engage in
sedentary to light to low level medium physical strength occupations carried
unilaterally with the use of only the left arm;
15.4. will have reduced efficacy levels in the performance of occupations that
require high levels of cognitive and executive functioning due to the
sequelae of the head injury;
15.5. presence of epilepsy precludes him from executing duties that require
working at elevated heights, working around open fires, working with
dangerous chemicals or weapons , and executing duties that entail
professional driving;
15.6. is suitable for unskilled to trainable in semi -skilled occupations, operating in
sheltered to empathetic employment setting s, where reasonable
accommodation can be provided for his deficits;
15.7. will never be able to return to his pre -accident level of functioning due to
physical, psychological , and cognitive deficits that resulted from the injuries
sustained in the accident ; and
15.8. injuries sustained in the accident left him with an occupational dysfunction
and significantly curtailed his career choices, thus making it hard for him to
re-enter the employment market.
16. The industrial psychologist assessed the plaintiff’s career path and earnings
potential. She opined that the plaintiff would have continued in the same
employment had it not been for the accident and would have continued working
until he reached retirement age . She is of the further view that the plaintiff will be
unable to compete fairly with able-bodied persons in the workplace. Furthermore,
the plaintiff should be compensated for the loss of amenities, pain and suffering
resulting from the accident, as well as future loss of amenities and pain and
suffering related to the treatment resulting from the accident.
17. Finally, the court was also provided with the actuary's report . In this report, the
plaintiff’s pastand future loss es were calculated without applying any contingency
deductions. The report stated that the court or the plaintiff may decide to make an
allowance for unforeseen contingencies. The net past loss of income was
calculated to be R 203, 672,00 and net future loss to be R 3, 210, 743 ,00.
18. It was argued on behalf of the plaintiff that the court should accept the actuarial
calculation of the plaintiff, but apply a 15% contingency deduction on the actuary’s
proposed past loss of earnings amount and a 25% contingency deduction on the
proposed future loss of earnings. In other words, it was proposed that an amount
of R 30,550.80 be deducted from R 203 672,00 and R 802 685 75 be deducted
from R 3,210, 743,00. If these deductions are to be made, the plaintiff would be
paid amounts of R 173,121,20 and R 2,408,057.00 for past and future loss of
earnings, respectively. The total payable amount would be R 2, 581,178,45.
19. In N.P.S obo Z.S v Road Accident Fund , it was held that:
‘[i]t is trite that in determining a fair and reasonable compensation for loss of income or
earning capacity, a court has a wide discretion. That discretion needs to be exercised
judicially. In determining future loss of income or earnings capacity one has to compare
what the claimant would have earned but for the incident with what he would likely to have
earned after the incident. The future loss represents the difference between the pre -morbid
and post -morbid earnings after the application of the appropr iate contingencies’.1
20. The locus classicus dealing with the determination of damages for loss of earning
capacity is the then Appellate Division’s case of Southern Insurance Association
Ltd V Bailey No , where it was held that:
‘[a]ny enquiry into damages for loss of earning capacity 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 very rough estimate, of the present value of the loss’.2
21. The court further held that there are two possible approaches that the court that is
undertaking such an inquiry can consider:
‘[o]ne 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 calculati ons,
on the basis of assumptions resting on the 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’.3
22. Mr Kutama, on behalf of the plaintiff, referred the court to the Supreme Court of
Appeal case of Road Accident Fund v Kerridge , where it was held that:
‘[a]ny claim for future loss of earning capacity requires a comparison of what a claimant
would have earned had the accident not occurred with what a claimant is likely to earn
1 (3614/2021) [2024] ZAECMKHC 87 (13 August 2024) para 14
2 [1984] 1 All SA 360 (A) 368.
3 Ibid.
thereafter. The loss is the difference between the monetary value of the earning capacity
immediately prior to the injury and immediately thereafter. This can never be a matter of
exact mathematical calculation and is, of its nature, a highly speculative i nquiry. All the
court can do is make an estimate, which is often a very rough estimate, of the present
value of the loss’.4
23. The actuary’s assessment of what the plaintiff earned before the accident and
what he would have earned had the accident not occurred is an important tool that
enables the court to carefully consider the injured person’s earning capacity before
and after the accident.
24. The facts presented to the court by the plaintiff play a crucial role in determining
the contingencies that should be applied before and after the accident. The
evidence before the court demonstrates that the plaintiff’s quality of life has been
severely impacted by the accident. Most significantly, the plaintiff has not worked
since the accident, and his chances of finding employment have been significantly
reduced.
25. While the actuary did not apply any contingencies, there is no need to deviate from
his assessment of the plaintiff’s past and future loss of earnings. The contingencies
proposed by the plaintiff also appear to lead to fair and reasonable compensation,
and there is no need to depart from them, despite this court’s discretion. There is
also no reason why the defendant should not be ordered to make an undertaking
in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996.
26. In the premises, the following order is made:
27. The Defendant is ordered to pay an amount of R 2 ,581,178.00 [ Two Million Five
Hundred Eighty -One Thousand One Hundred and Seventy -Eight Rand] to the
4 [2019] 1 All SA 92 (SCA) para 40. The further further held that ‘[c]ourts have used actuarial calculations
in an attempt to estimate the monetary value of the loss. These calculations are obviously dependent
on the accuracy of the factual information provided by the various witne sses. In order to address life’s
unknown future hazards, an actuary will usually suggest that a court should determine the appropriate
contingency deduction. Often a claimant, as a result of the injury, has to engage in less lucrative
employment. The natur e of the risks associated with the two career paths may differ widely. It is
therefore appropriate to make different contingency deductions in respect of the pre -morbid and the
post-morbid scenarios. The future loss will therefore be the shortfall between the two, once the
appropriate contingencies have been applied’ [para 41].
plaintiff’s attorneys by way of a lump sum payment via an electronic transfer into
their trust account within 180 (one hundred and eighty) calendar days of service of
the order, by way of electronic transfer to the trust account, details of which are set
out hereunder (“the capital payment”) which is calculated as follows:
27.1 Past loss of earnings: R 173,121,20
27.2 Future loss of earnings: R 2, 408, 057
28. The Defendant is ordered to furnish the Plaintiff with an undertaking within 30 days
from the date hereof, free from caveats and qualifications, in terms of section
17(4)(a) of the Road Accident Fund Act, for 100% (one hundred percent) of the
costs of the future accommodation of the Plaintiff in a hospital or nursing home or
treatment of or rendering of a service to the Plaintiff or supplying of goods to the
Plaintiff arising out of the Plaintiff’s injuries sustained in the motor vehicle collision
which gav e rise to the action, after such costs have been incurred and upon proof
thereof. This includes the costs of the appointment of the case manager to activate
and case manage the undertaking.
29. The Defendant shall pay the Plaintiff’s taxed or agreed High Court Scale party and
party costs, subject to the discretion of the Taxing Master, inclusive of the costs
related to any motions and applications and including for the sake of clarity, but not
limited, to the costs of the Plaintiff’s instructing attorneys, and the correspondent
attorneys in Pretoria (if any where appointed) as well as the other costs set out
hereunder;
29.1. All proven and taxed costs incurred by the plaintiff’s attorneys and advocate
in this matter , including travel costs, preparation of brief and relevant case
bundles, client and counsel consultation fees, and courier services.
29.2. Costs relating to all the expert witnesses procured by the plaintiff’s attorneys
in this matter , inclusive of their reports, consultations , and confirmatory
affidavits .
COUNSEL FOR THE PLAINTIFF : Adv M Kutama
INSTRUCTED BY : M.G Mali Attorneys Inc
COUNSEL FOR THE DEFENDANT : No appearance
INSTRUCTED BY : No appearance
DATE OF CONSIDERATION : 4 June 2025
DATE OF JUDGMENT : 11 June 2025