REPUBLIC OF SOUTH AFRICA ·
IN TI-IE HIGH COURT OF SOUTI-I AFRICA
GAUTENG DJVISJON , PRETORIA
Case Number: 28083/201l
(l) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
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DATE
In the matter between
MOHLOUWAJAMESMOHAKA
And
ROAD ACCIDENT FUND
WDGMENT PLAINTI FF
DEt'END ANT
The matter was heard in open court and the judgment was prepared and authored by the judge
whose name is reflected herein and was handed down electronically by circulation to the parties'
legal representatives by email and by uploading it to the electronic file of this matter on
Case lines. The date of handing-down is deemed to be I .fu~y 2025
INTRODUCTION
(1] This is a claim by the plaintiff against the Road Accident Fund for damages arising from a
motor vehicle collision. The plaintiff who was 6 years old at the time, was injured in a motor
vehicle collision that occurred on 28 May 2002, while he was a pedestrian. On 15 October 2014,
the Court granted an order in terms of which the defendant is held liable for I 00% of the plaintiff's
proven and/or agreed damages. The issue of liability is, therefore, no longer in dispute and the
matter proceeded on quantum only.
[2] The plaintiff is claiming damages for loss of earnings '1ncl ~111 erclcr tc, the effect that the
defendant should furnish to the plaintiff an undertaking in terms of section 17(4)(a) of Act 56 of
1996 for payment of 100% of treatment related to the accident.
[3] The plaintiffs attorneys brought an application in terms of Rule 38(2) of the Uniform Rules of
Court to admit the plaintiff's medico-legal reports as evidence. The application was granted and
the reports were admitted accordingly. The defendant did not file any expert reports.
EXPERT EVIDENCE
Orthopaedic surgeon -Dr Senske
[4] Dr Senske stated that according to the plaintiff, he sustained the following injuries: laceration
on the forehead, fracture on both forearms, fracture on both lower legs and pelvic fracture. He
recorded that the hospital records reflect a right femur fracture.
[5] The orthopaedic surgeon reported the plaintiff's injuries as right femur fracture, soft tissue
injury right and left forearm and soft tissue injury to the right and left lower legs. Current
complaints include an inability to stand for long periods, lift heavy objects, and squat, as well as
painful ankles and forearms that are aggravated by cold weather.
[6] The orthopaedic surgeon further reported that the plaintiff experiences constant pain and
discomfort. He stated that the pain symptoms will improve with successful conservative treatment,
NSAIDS and analgesics coupled ,vith physiotherapy. I-le concluded that there is no evidence that
the plaintiff will experience loss of work ability because of the orthopaedic injuries sustained in
the accident. Further that there will be no early retirement due to orthopaedic injuries sustained in
the accident.
Occupational therapist -Mattie Peach
[7] Ms Peach recorded that the plaintiff stated that he experiences pain in the lower back and pain
and stiffness in his left ankle. Further that he did not report any pain symptoms related to the right
femur. It is recorded that the abovementioned difficulties affect his general mobility, ability to
handle weights and his performance in daily tasks. Ms Peach concluded that the plaintiff does not
exhibit any accident-related cognitive impairment.
[SJ The occupational therapist noted that the plaintiff was very young at the time of the accident
and could therefore not indicate whether there had been a change in his mood, social skills or
interpersonal relationships following the accident. She further recorded that the plaintiff indicated
that he had no complaints related to his current mood, social skills or interpersonal relationships.
She concluded that there was no evidence that the accident affected the plaintiff's mood.
[9] According to the occupational therapist the plaintiff is currently capable of handling
occupations that fall within the medium range. She indicated that she did not foresee any
significant physical restrictions with regard to the plaintiff executing his current occupation. She
recommended future treatment in the fonn of occupational therapy.
Industrial psychologist -Aimee Esterhuyzen
[10] Ms Esterhuyzen noted that the occupational therapist stated that the plaintiff was suited for
occupations fa11ing within the medium range. She stated that given that the plaintiff's highest
educational level is grade 9, the plaintiff was generally limited to unskilled positions for the
remainder of his career. She indicated that should the plaintiff search for alternative employment,
it will probably be one that is dependent on his physical strength. Further that should the position
exceed medium range work, the plaintiff will probably decline such offer or alternatively work
with pain and discomfort, which will affect his work perfonnance and productivity. She stated that
the plaintiff was considered an unequal competitor in the open labour market.
Actuary -Nilene Kambaran
[11] Ms Kambaran noted that: The plaintiff was 7 years old in grade Rat the time of the accident.
After the accident the plaintiff was able to resume attending school, Grade 1 in 2004. He
progressed to Grade 10 in 2013 after repeating Grade 9 in 2012. He dropped out of school in 2013
and started working as a cook for Samuel Oros earning R400 per week until he secured work as a
General Worker at Thamza Butchery. He was incarcerated between in 2014 (sentenced in
November 2015) and was released during February 2019. He returned to Thamza Butchery and
was promoted to supervisor during 2019. He was working at the butchery earning R3 800 per
month during 2022. She lurlher noted lhe mduslrial psychologist s opirnon thaL Lhc plaintiff would
have progressed as he had done after the accident and that he had not suffered any past Joss of
earnings as a result of the accident.
INJURIES AND TREATMENT
[12] According to the clinical records and radiographic reports, the plaintiff sustained the
following injuries as a result of the motor vehicle accident on 28 May 2002: (a) A right femur
fracture (upper leg); (c) Soft tissue injuries to the left and right lower legs; (d) A laceration on the
forehead.
[13] The plaintiff was admitted to the paediatric ward at Sasolburg Hospital for approximately two
weeks following the accident. The treatment administered included: Suturing of the facial
lacerations; Application of Plaster of Paris to the right leg; Application of a Thomas splint for leg
immobilisation and Surgical intervention, specifically the insertion of a K-wire in the right femur,
which remains in situ to date. Post-hospitalisation, the plaintiff was required to mobilise with
crutches for a period of 8 months.
CURRENT COMPLAINTS AND SEQUELAE
[14] The plaintiff currently complains of lower back pain, pain and stiffhess in his lower ankle.
THE LAW
[15] In Southern Insurance Association Ltd v Bailey NO. 1984(1) SA 98 AD it was said:
"Any enquiry into damages for loss of earning capacity is to its nature speculative, because it
involves a prediction as to the future without the benefit of crystal balls, soothsayers, augers 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 a loss".
ANALYSIS
[16] According to the orthopaedic surgeon the plaintiff sustained a right femur fracture, with
additional soft tissue injuries to both forearms and both lower legs. Although the plaintiff alleged
more e\.tensivc:: injuries lik\;' fracture of the hip, ;mns and ankle, ho~pital records confirm onl) lhc
right femur fracture. He noted the plaintiffs complaints of difficulty standing for prolonged
periods, lifling heavy objects, squatting, and experiencing pain in his ankles and forearms,
exacerbated by cold weather. The orthopaedic surgeon concluded that the pain is manageable with
conservative treatment and physiotherapy. Importantly, he opined that there is no medical basis to
suggest the plaintiff will suffer any loss of work ability or be forced into early retirement due to
the injuries sustained in the accident.
[17] The occupational therapist reported that the plaintiffs functional limitations affect his
mobility, ability to handle weights, and daily functioning. She, however, found the plaintiff
suitable for occupations within the medium physical demand category and indicated that he is not
significantly restricted in performing his current job. She recommended continued occupational
therapy for optimal recovery.
(18] Regarding the plaintiffs complaint of lower back pain and mood changes, the occupational
therapist recorded that it is difficult to causally link the plaintiff's lower back pain and mood
changes directly to the accident, due to the plaintiffs young age at the time the injuries were
sustained. She nonetheless considered the symptoms to form part of the holistic assessment of
functional and emotional sequelae post-accident.
[19] After considering the reports by the orthopaedic surgeon and the occupational therapist, the
industrial psychologist accepted the findings of the occupational therapist that the plaintiff remains
capable of medium-level physical work. The industrial psychologist highlighted that, given his
Grade 9 education, the plaintiff's employment prospects are limited to unskilled and semi-skilled
positions, often reliant on physical labour. Further, that while the plaintiff was capable of current
work, any occupation exceeding medium physical demands would likely aggravate the plaintiffs
symptoms, thereby affecting productivity. She opined that the plaintiff was an unequal competitor
in the open labom market due to his limited qualifications and physical constraints.
[20] Ms Kambaran considered the plaintiffs educational and employment history, noting that he
dropped out of school in 2013 (Grade 10), worked intermittently, and was incarcerated from 2014
to early 2019. Post-release, he resumed employment at Thamza Butchery, later being promoted to
supervisor, earning .KJ,800 per month in 2022. She also noted the industrial psychologist's opinion
that the plaintiff would likely have followed the same employment trajectory regardless of the
accident and found no quantifiable past loss of income.
[21] Regarding the plaintiff's future loss of income, Ms Kambaran, the actuary considered Ms the
industrial psychologist's opinion that the occurrence of loss is more likely because he is suited for
medium-range physical work. At the same time, his level of education may require physical work.
The actuary calculated the plaintiff's loss of earnings to be R2 026 365.00 both pre-morbid and
post-morbid.
[22] It is not in dispute that the plaintiff's career trajectory has not been affected by the accident.
The court accepts the actuarial calculation ofR2 026 365.00 pre-and post-morbid earnings. The
plaintiff remains employed even after his incarceration between 2014 and 2019. What is also
undisputed is the fact that the plaintiff still experiences pain more than IO years after the accident,
as noted by the orthopaedic surgeon and the occupational therapist's report. Although there are
questions regarding the plaintiff's back pain and ankle pain, the defendant did not file any opposing
medico-legal reports and did not call any expert witnesses to rebut the plaintiff's evidence.
[23] There is no dispute that the plaintiff is reliant on his physical aptitude, which has become
restricted. Having accepted the plaintifl's pre-and post-accident earnings as the same, what
remains is the contingencies applicable. I have applied the contingencies as follows:
Pre-morbid Post-Morbid Loss after contingencies
R2 026 365.00 R2 026 365.00 RO
20% R405 273.00 15% R303 954.75 RlOl 3 I 8.25
Rl 621 092.00 RI 519 767.00 R 101318.25
[24] In my view, the plaintiff's loss in this regard amounts to R 101 318.25.
CONCLUSION
[25] I-laving considered the evidence and the submissions on behalf of both parties I am satisfied
that the plaintiff has proved on a balance of probabilities that (a) he will require future medical
treatment as confirmed by Dr Senske and Ms Peach; (b) he has suffered loss of future income as a
result of the accident.
In the results, f make the following order:
I. Application in terms of rule 38(2) is granted.
2. The defendant shall pay to the plaintiff an amom1t of RI0I 318.25 in respect of plaintiff's loss
of earnings.
3. Defendant shall provide the plaintiff with an undertaking in terms of section 17( 4)(a) of Act 56
of 1996 to compensate the plaintiff for I 00% the costs relating to future accommodation in a
hospital or nursing home or treatment of or the rendering of service or supplying of goods to the
plaintiff after the costs have been incurred and on proof thereof, as a result of the injuries sustained
by the plaintiff in the motor vehicle accident which had occurred on 28 May 2002.
4. The defendant is ordered to pay the plaintiffs taxed or agreed party and party costs on High
Court Scale B.
Date of hearing: 14 February 2025
Date of judgemen t: pt July 2025 PDKEKANA
ACTING JUDGE OF THE HIOH COURT