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
Not reportable
Case no: 301/20 19
In the matter between
SM S[…] P LAINTIFF
And
ROAD ACCIDENT FUND D EFENDANT
Neutral citation: S[…] v RAF (301/2019) [2025] ZAFSHC 202 (30 June 2025)
Coram: Mpama AJ
Heard: 25 March 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 12h00 on 30 June 2025
Summary: liability of the defendant – claim for loss of income and future medical
costs – contingencies
________________________________________________________________________
ORDER
________________________________________________________________________
1 The defendant is liable for the plaintiff’s 100 % proven damages.
2 The claims for future loss of income and medical expenses are separated from the remainder of quantum in terms of r ule 33(4) and the claim for general damages is
postponed to the pre- trial roll of Monday, 7 July 2025.
2
3 The defendant shall pay the plaintiff an amount of R 3 839 957 (three million eight
hundred and thirty -nine thousand nine hundred and fifty -seven rand) in respect of loss of
future income.
4 The defendant shall pay the abovementioned amount into the plaintiff’s attorney’s trust
account. The plaintiff’s attorney’s trust account details are as follows:
Account holder: VZLR INC
Branch: Absa Business Bank Hillcrest
Branch Code: 632005
Type of Account: Trust Account
Account number: 3[…]
Reference: MAT125079
5 The payments shall be made by the defendant to the plaintiff within 180 days from the
date of this order into the trust account of the plaintiff’s attorneys failing which the
defendant shall become liable to pay interest a tempore mora on the capital amount
aforesaid at a rate of 7% per annum from the date of this order to date of final payment.
6 The defendant is to furnish the plaintiff with an undertaking in terms of section 17(4) of
Act 56 of 1996, in respect of future accommodation of the minor in a hospital or nursing
home or treatment of or rendering of a service or supplying of goods of a medical nature
to the minor (and after the costs have been incurred and upon submission of proof
thereof) arising from the injuries sustained by the minor in the motor vehicle collision on
07 April 2018.
7 In the event that the defendant does not, within 180 days from the date on which this
order is handed down, make payment of the capital amount, the defendant will be liable
for payment of interest on such amount at 11,25% (statutory rate per annum)
compounded and calculated fourteen days from the date of this order.
8 The defendant shall pay, subject to the discretion of the Taxing Master, the plaintiff’s
taxed or agreed party -and-party costs, on High Court scale up to date, when the order is
granted by court, including but not limited to:
3
8.1 the costs of Counsel on Scale B
8.2 the reasonable qualifying fees of the following experts:
8.2.1. Dr Deacon
8.2.2 Ms Claire Hearne
8.2.3 Ms Lida Roos
8.2.4 Ms Anel Booyse n
8.2.5 Dr AC Strydom
8.2.6 Mr Johan Sauer
9 In the event of default on the costs payment, the interest shall accrue on such
outstanding amount at the statutory mora rate on the date of taxation/ settlement of the
bill of costs, as per Prescribed Rate of Interest Act 55 of 1975, as amended, per annum,
calculated from due date until date of payment .
________________________________________________________________________
JUDGMENT
________________________________________________________________________
Mpama AJ
[1] The plaintiff (also the insured driver) is Mr T […] K[…] S[…], suing in his
representative capacity as the father and guardian of the minor child, S[…] M[…] S[…]
(the minor) .
[2] The defendant is a statutory body, established in terms of s 2(1) of the Road
Accident Fund Act 56 of 1996 (the RAF).
[3] On 7 April 2018, at R30 between Vierfontein and Orkney, the minor was a
passenger in a motor vehicle driven by his father, the plaintiff. He was involved in an
accident when the plaintiff swerved to avoid hitting an animal and lost control of the vehicle.
[4] As a result of the accident, the minor sustained a fractured right clavicle and left
femur. The plainti ff instituted action proceedings against the defendant claiming loss of
4
income, general damages , past and future medical costs .
[5] On the date of the hearing, Ms Booysen, appearing for the defendant , informed the
court that she has no instructions from the defendant and requested to be excused. I
acceded to her request.
[6] The plaintiff informed the court that the merits have not been conceded and the
seriousness of the damages was not accepted or rejected by the defendant. He requested that the general damages be separated in terms of r ule 33(4) of the Uniform
Rules of the Court and I granted the order for separation of issues.
[7] Resultantly, the issues for determination are the liability of the defendant , future loss
of income and medical costs.
[8] The plaintiff bears an onus to prove that the insured driver ’s negligence was the
sole cause of the accident. T he defendant must disprove this .
[9] The plaintiff , in his particulars of claim , averred that the accident was caused solely
by the negligence of the insured driver in the following respects inter alia :
(a) He travelled at a high speed;
(b) He omitted to keep a proper lookout ;
(c) He omitted to keep his motor vehicle under proper control lookout ; and
(d) He failed to avoid an accident when by the exercising of reasonable care, he should
and could have done so at the time of the accident .
[10] Another relevant piece of information as to how the accident occurred is to be found
in the accident report (AR). In the AR it is alleged that the accident occurred whilst the driver was driving and suddenly an animal got inside the road. The driver lost control of the vehicle and it rolled until it stopped outside the road.
[11] Section 17(1) of the Road Accident Fund Act 56 of 1996 (the RAF Act) places a
duty on the defendant to compensate a third party for bodily injuries arising from
negligent driving of a motor vehicle. The minor child was a passenger in the driver’s
vehic le. It is not in dispute that the he sustained bodily injuries as a result of a motor
vehicle accident. What is required is for the plaintiff to show that the insured driver was
5
negligent. He only needs to establish at least 1% of the negligence.
[12] On how the accident occurred, there is no evidence adduced to controvert the
plaintiff’s evidence. I can hardly think of any situation where a passenger in a motor
vehicle accident can be held to be liable or have contributed to the cause of an accident.
It is my view that the accident was due solely to the driver’s negligent act s as alleged.
Accordingly , the defendant is liable for the plaintiff’s 100% proven or agreed damages.
[13] Next to be determined is whether the plaintiff sustained patrimonial loss and , if so,
the amount of such loss. T he duty to prove this lies with the plaintiff. In regards to loss of
future income, in Rudman v Road Accident Fund [2002] ZASCA 129; [2002] 4 ALL SA
422;
2003 (2) SA 234 (SCA) , Jones AJA , at para 11, said:
‘I believe that this conclusion is correct. The fallacy in Mr Eksteen’s criticism is that it assumes
that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in
his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be
made. A physical disability which impacts upon capacity to earn does not necessarily reduce the
estate or patrimony of the person injured. It may in some cases follow quite readily that it does,
but not on the facts of this case. There must be proof that the reduction in earning capacity
indeed give rise to pecuniary loss .’
[14] The plaintiff brought an application in terms of rule 38(2) of the Uniform Rules of the
Court. Having heard the application, I granted the application. Consequent to my order,
the following affidavits and experts’ reports were admitted to form the evidentiary material
of the plaintiff: Dr AC Strydom (industrial psychology), Dr Deacon ( Orthopaedic surgeon),
Ms Anel Booys en (occupational therapist), Ms G Hearne (clinical psychologist), Ms L
Roos (educational psychologist) and Mr J Sauer (an actuary) .
The expert s’ reports
Dr Deacon
[15] He examined the minor on 8 August 2019 and stated the following:
(a) At the time , the minor was 15 years old. He reported that the minor was doing grade 9
at the time of the accident. H e was away from school for four months as a result of the
accident. On his return to school , he complained of difficulty walking long distances due
to the injury in his left upper leg. The minor and his father reported that the minor
continued to experience pain in his right shoulder and when walking long distances and
6
that cold weather aggravated the pain in his left upper leg.
(b) He perused the hospital records in possession of the plaintiff. T he records revealed
that the minor was treated conservatively . The treatment included bed rest, traction
applied to his left leg and physiotherapy. He also received analgesia and non- steroidal
anti- inflammatory medication.
(c) According to the father, the minor sustained a head injury but there were no medical
records to confirm. He also suffers from chronic pain associated with his head, right
shoulder and left upper leg.
(d) The doctor conducted a radiological examination and observ ed the following: on the
right shoulder there was evidence of a previous fracture to the medial aspect of the right
clavicle ; bony remodel ling noted with some hypertrophy and the minor was skeletally
immature . He concluded that there was evidence of a previous fracture of the medial
third of the right clavicle close to the sternoclavicular joint with bony remodel ling and
hypertrophy.
(e) On the left upper leg there was shortening of the femur, evidence of a previous
fracture of the distal third of the femur, shortening of the femur with varus angulation,
subsequent deformity demonstrated at the left femur fracture site and pelvic tilt due to
shortening of the left femur. He concluded that there was evidence of a previous fracture
of the left distal femoral diaphysis, the fracture has united with a varus deformity as well
as significant shortening of the left femur, a pelvic tilt and bowing of the left femur.
(f) H e opined that the minor has a united right clavicle fracture with residual pain,
malunited left distal femur with residual knee pain, leg length discrepancy of 4 centimetr es and 20- degree varus angulation.
(g) A probability existed that the minor will in future develop secondary left knee and hip
problems as well as mechanical back pain. Due to biochemical stress in the lateral
compartment of the knee as well as length discrepancy on the leg, there was a definite
probability , more than 50% chances t hat the minor will develop osteoarthritis in the lateral
compartment of his knee joint. He recommended corrective osteotomy of the distal femur, limb lengthening procedure and an orthotist for a built -up shoe.
(h) His final conclusions were that the minor sustained injuries to the head, right shoulder
and left upper leg. He continues to suffer from the sequelae of his injuries and the injuries
on his left upper leg had a profound impact on the minor’ s productivity, working ability
and the amenities of life. That if he enters the workforce, he must be accommodated in a permanent light duty and sedentary working environment as determined by the occupational therapist.
7
Dr Claire Hearne
[16] She assessed the minor on 8 August 2019 and stated as follows:
(a) She reported that according to the information obtained from the minor’ s parents,
the minor was in good physical health prior the accident. T here were no reports of
psychiatric and psychological history prior the accident. Ther e was no indication of
previous trauma. She was able to establish that the minor’s gross developmental
milestones followed a normal trajectory.
(b) After examination she concluded that the minor was struggling to adjust to the
injuries and sequelae thereof. He p resent ed with symptoms of anxiety and depression.
Cognitively, he perform ed in the average range overall in both verbal and non- verbal
domains. These difficulties w ould interfere with his ability to study to his premorbid
potential. He present ed with barriers to his learning, which influenced his performance
negatively. He was at a risk due to his emotional dysfunction. She recommended
psychotherapeutic intervention to assist him to cope with the effects of the accident.
Ms Lida Roos
[17] She assessed the minor on 21 July 2020 and stated as follows:
(a) At the time the minor was 16 years old. The intention was to determine if the
accident had a negative impact on the minor’s cognitive, emotional, social and academic function.
(b) She established that the minor at the time of the accident was attending school at
Leseding Technical Secondary School, in grade 8 and did not repeat the grade. He was
away from s chool for several week but on his return his teachers and fellow learners
assisted him with his studies. The minor’s father reported that the minor’s academic performance declined initially after the accident but improved again.
(c) The school ’s post-accident reports were made available and they showed that the
minor achieved the learning outcomes in g rade 8, 9 and 10 with moderate achievement.
(d) She concluded that prior the accident, the minor was a child with average learning
potential. He had the intellectual potential to complete matric with endorsement and progress to obtain a tertiary certificate (NQF 5). He would have been able to find
employment post -qualification in his field of study. He has an above average non- verbal
potential and studies in a practical career (like an artisan) would have been realistic. That
post-accident, the minor was still a learner with adequate average potential. H e was
coping with his academic demands. There were identified fall -outs and he would benefit
8
from extra support. His learning was somehow negatively influenced in some areas. She
concluded that general ly, his learning was adequate but not fully on his level pre -
accident , intellectually he was still able to progress and obtain NQF 5 if he undergoes the
recommended therapy. However, h is car eer options would be influenced by his
orthopaedic injuries.
Dr AC Strydom
[18] He assessed the minor on 18 February 2022 when he was 18 years old and stated
as follows:
(a) His intention was to evaluate the effects of the accident and its sequelae on the
employabili ty and earning capacity of the minor. At the time of the assessment, the
mino r was studying towards civil engineering.
(b) He concluded that the minor w ould reach the same potential as pre- morbidly in his
studies with the recommended therapy and learning support. However, his car eer
options according to his strengths and above average non- verbal aptitude would be
influenced by his orthopaedic injuries. His post -accident career and employment options
were limited due to the accident. T herefore, the accident had a negative effect on his
future employability. The minor would be able to handle work demands falling in the
sedentary to light category with frequent breaks if frequent sitting and standing are
required. Noting his physical difficulties as well as the prognosis by the orthopaedic surgeon, he will battle to meet the job demands of construction work which falls within the medium to heavy category of work. Since the minor was still very young, he will be
able to perform work that falls within his residual work capacity and his current studies
may not be appropriate given his residual work capacity. (c) He concluded that t he minor must be accommodated in a permanent light duty and
sedentary working environment. Due to the constant pain and discomfort , he was
exposed to, he was unable to perform at his best or the required standard. He st ood a
risk of being dismissed due to poor performance or he might resign prematurely or take an early pension.
Ms Anel Booysen
[19] She evaluated the minor on 24 March 2020 and stated as follows:
(a) At the time the minor was doing g rade 11. The purpose of her investigation was to
determine the extent of the minor’s functional limitations as a result of the accident -
related injuries and the sequelae thereof and to comment on the loss of quality of life, the
9
impact on his earning capacity as it relates to the accident.
(b) She observed that the minor walked with a limp due to leg length discrepancy. She
noted asymmetr y in the spine due and that the minor frequently shifted weight towards
the end of assessment due to pain in his leg and lower back.
(b) The minor informed her that he wanted to become a construction worker and builder
as he enjoyed manual labour .
(c) Since this form of work falls within medium to heavy and sometimes very heavy
category of work, she found that the minor will significantly battle to meet the job
demands. This kind of work required frequent standing, crouching, elevated work forward
bend, standing, walking over uneven terr ain and managing heavier weights. He will also
be required to work on scaffolding or a ladder.
(d) She concluded that the minor will be able to handle work demands falling only in the
sedentary to light category and not his intended job in construction. The minor also
present ed with psycho -social difficulties and that upon entering the open labour market
this could impact his relationship with his peers and managers. He recommended that
the minor be mentored in terms of social skills . Lastly, she concluded that due to the
minor’s his physical limitations, he will be an unfair competitor in open labour market
compared to his healthy peers ; and
Mr Johan Jacobus Christoffel Sauer
[20] He did the actuarial calculations after consider ing the reports of the other experts.
[21] The expert evidence demonstrates the minor’s injuries and the sequalae thereof.
This evidence is uncontroverted. The minor sustained bodily injuries. This is the opinion
of Dr Deacon, after he conducted physical and radiological examination of the minor . The
occupational therapist and industrial psychologist have explained how these injuries have impacted the minor’s career of choice and his potential income.
[22] When the minor was assessed by the occupational therapist whilst still at school , he
expressed his wish to get a qualification in construction. He is now pursuing his studies in civil engineering. Expert evidence suggests that the minor will obtain the qualification,
nevertheless, the injuries will interfere with his chosen career.
[23] Civil engineering involves large scale infrastructure projects like building dams,
bridges tunnels and large water management systems. It also encompasses light work
10
like building roads, residences and small bridges. However, engineers use their technical
knowledge to develop solutions and oversee the implementation of engineering projects. At times they are required to perform tasks that are physical in nature on the field.
[24] It has long been the minor’s settled intention to pursue this vocation and he cannot
be held at fault for acting upon his bonafide aspirations. Notwithstanding the accident, he
survived to effectuate his chosen career path.
[25] It is undisputable that the minor’s chosen sphere of employment is of a physical
nature, mandating his periodic presence in the field. I find the expert evidence adduced
on behalf of the plaintiff unimpeachable and accordingly accept it unreservedly, in the absence of contrary evidence. Accordingly, I am satisfied, on a balance of probabilities that the plaintiff has established his claim for loss of income.
[26] What remains to be determined is the total of loss and contingency deduction to be
applied. It is trite tha t, despite the actuarial calculations, the court has a wide discretion to
award what it considers right . Contingency deductions play a critical role in calculating
damages, especially for future loss of earnings. In Southern Insurance Association v
Bailey NO 1984 (1) SA 98 (A) at 116G -H, Nicholas JA expressed as follows:
‘Where the method in actuarial computation is adopted in assessing damages for loss of earning
capacity, it does not mean that the trial Judge is tied down by “inexorable actuarial calculation”.
He has a ‘large discretion to award what he considered right’. One of the elements in exercising
that discretion is the making of a discount for ‘ contingencies’ or differently put the ‘vicissitudes of
life’. These includes such matters as the possibility that the plaintiff may in the result have less
than a normal expectation of life, and that he may experience periods of unemployment by
reason of incapacity due to illness or accident, or to labour unrest or general economic condition.
The amount of any discount may vary depending upon the circumstances of the case.’
The plaintiff has urged the court for a 15% pre-morbid and higher post -accident
deduction of 35%. There is no contrary submission.
[28] The actuarial calculations are not binding to this court as the court has a wide
discretion to award what it considers to be fair and reasonable compensation. I t is my
opinion that the actuarial calculations with the contingency deductions as advocated by
the plaintiff represent a reasonable, fair and adequate compensation for the plaintiff.
Resultantly, an amount of R 3 839 957 is a reasonable amount for loss of earnings in the
11
circumstances of the plaintiff.
[29] In the circumstances I order as follows :
1. The defendant is liable for the plaintiff’s 100 % proven damages .
2. The claims for future loss of income and medical expenses are separated from the
remainder of quantum in terms of r ule 33(4) and the claim for general damages is
postponed to the pre- trial roll of Monday, 7 July 2025.
3. The defendant shall pay the plaintiff an amount of R 3 839 957 (three million eight
hundred and thirty -nine thousand nine hundred and fifty -seven rand) in respect of loss of
future income.
4. The defendant shall pay the abovementioned amount into the plaintiff’s attorney’s trust
account. The plaintiff’s attorney’s trust account details are as follows:
Account holder: VZLR INC
Branch: Absa Business Bank Hillcrest
Branch Code: 632005
Type of Account: Trust Account
Account number: 3[…]
Reference: MAT125079
5. The payments shall be made by the defendant to the plaintiff within 180 days from the
date of this order into the trust account of the plaintiff’s attorneys failing which the
defendant shall become liable to pay interest a tempore mora on the capital amount
aforesaid at a rate of 7% per annum from the date of this order to date of final payment.
6. The defendant is to furnish the plaintiff with an undertaking in terms of section 17(4) of
Act 56 of 1996, in respect of future accommodation of the minor in a hospital or nursing
home or treatment of or rendering of a service or supplying of goods of a medical nature
to the minor (and after the costs have been incurred and upon submission of proof
thereof) arising from the injuries sustained by the minor in the motor vehicle collision on
07 April 2018.
12
7. In the event that the defendant does not, within 180 days from the date on which this
order is handed do wn, make payment of the capital amount, the defendant will be liable
for payment of interest on such amount at 11,25% (statutory rate per annum)
compounded and calculated fourteen days from the date of this order.
8. The defendant shall pay , subject to the discretion of the Taxing Master, the plaintiff’s
taxed or agreed party -and-party costs, on High Court scale up to date, when the order is
granted by court, including but not limited to:
8.1 the costs of Counsel on Scale B
8.2 the reasonable qualifying fees of the following experts:
8.2.1. Dr Deacon
8.2.2 Ms Claire Hearne
8.2.3 Ms Lida Roos
8.2.4 Ms Anel Booyse n
8.2.5 Dr AC Strydom
8.2.6 Mr Johan Sauer
9. In the event of default on the costs payment, the interest shall accrue on such
outstanding amount at the statutory mora rate on the date of taxation/ settlement of the
bill of costs, as per Prescribed Rate of Interest Act 55 of 1975, as amended, per annum,
calculated from due date u ntil date of payment .
MPAMA AJ
Appearances
For the plaintiff: Adv A. Sander
Instructed by: VZLR Inc , Pretoria
c/o Du Plooy Attorneys , Bloemfontein.
For the defendant : no appearance