Reportable:
Circulate to Judges:
Circulate to Regional Magistrates:
Circulate to Ma oistrates:
IN THE HIGH CO.URT OF SOUTH AFRICA
(NORTHERN CAPE 0·1v1s16N; KIMBERLEY) '
YES / NO
YES / NO
YES / NO
YES / NO
Case No: 1786/2019
In the matter between:
MOLLER, ANTON Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Neutral citation: A Moller v The Road Accident Fund (Case No:
1786/2019)
Coram: Nxumalo J .
Date of Judgment: 11 July 2025
Summary: Delict - Claim for damages .- Hoad Accident Fund - Past and future
loss of earnings - Allegation of double compensation - Plaintiff previously
compensated for 'partial loss of earnings' iri earlier accid~mt __:,. Whether further
compensation in respect of second accident constitutes double _compensation -
Plaintiff injured in second motor vehicle accident, resulting in total unemployability
-Court finding that the plaintiffs replication is not only in answer to or as a resurt
of the allegations contained. in the amended plea, it is also consistent with the
allegations contained in the particulars of claim·. It further does riot contain any
new cause of action - Court also finding that earlier settlementwas for partial, not
total, loss of earning capacity-No evidence by defendant to prove prior settlement
covered total future loss - Actuarial evidence accepted - Plaintiff entitled to
damages for residual earning capacity lost due to second collision - Award made
for loss of past and future earnings.
Page 2
ORDER
1. The •defendant shall pay to the plaintiff an amount of R3 990 624.00 (Three
Million Nine Hundred and Ninety Thousand Six Hundred and Twenty-Four
Rand) in respect of the plaintiff's loss of past and future earnings.
2. Payment of the said amount.shall be made into the account of the plaintiffs
attorney of record by means of direct electronic funds transfer into the said
attorney's account.
3. The defendant shall pay the plaintiffs taxed and/or agreed party and party
costs on Scale C , which shall include but not limited to:
3.1 . the costs of trial for 05 and 06 August 2024.
3.2. the costs of obtaining all medico-legal reports; actuarial reports from
the plaintiff's experts furnished to the defendant, including the RAF1
and 4 forms of all the expert reports delivered on behalf of the plaintiff
in these proceedings.
3.3. the costs of preparation and reservation fees and costs to attend the
trial of the following experts, who attended the trial; to wit: (a)
Dr Barlin, the orthopaedic surgeon; and (b) Ms Rossouw , the
industrial psychologist.
4. The following shall apply with regards to the determination of the
aforementioned taxation of costs:
4.1. the plaintiff shall serve the notice• of taxation on the defendant's
attorney of record; and
4.2. the plaintiff shall allow the defendant 14 (fourteen) court days to make
payment of the taxed costs from the date of taxation.
5. The plaintiff shall be entitled to recover interest at the rate of 7% ( seven
percent), from the expiration of the 14 (fourteen) court days after taxation.
JUDGMENT
INTRODUCTION:
Page3
[1] This is a claim for compensation instituted by the plaintiff on 13 August
2019, for damages against the Road Accident Fund,1 as a result of certain
bodily injuries caused by a motor-vehicle accident, as regulated by Section
28 of the Road Accident Fund /\ct 56 of 1996 (the "Act'} The plaintiff is
one Anton Moller, a major male born on 13 June 1967 and residing within
the jurisdiction of this Court. The defendant is a legal person incorporated
in terms of Section 2( 1) of. the Act, with its principal place of business
situate at Centurion, Pretoria.
[21 The plaintiff alleged that on 13 _December 2014 he was a passenger in a
certain motor vehicle travelling between Barkly-West and Delportshoop, in
the Northern Cape. The said motor vehic1e was there and then being
driven by one Ronnie Van Der Merwe. The cause of the collision was due
to the negligent driving of the said driver.2
[3] As a result of the foregoing, the plaintiff suffered the following bodily
injuries; to wit multiple abrasions to the head, resulting in a head and brain
injuries with loss of consciousness; multiple abrasions on the chest and
the left arm; complete transverse distal humerus fracture of the right arm
with displacement and shortening; and a sub-capital NCF fracture of the
right hip, complete and transverse with a displaced femoral head with
shortening. As a result of the said injuries, the plaintiff was hospitalised,
treated and discharged from hospital on or about 24 December 2014.
[4] It is common cause that the said injuries are serious as contemplated in
Section 17 of the Act. The plaintiff now claims damages, interest thereon
at the prescribed rate per annum, a tempore mora, calculated from 14 days
1 Hereinafter referred to as "the defendant"
2 Hereinafter referred to as "the second collision"
Page4
after the date of judgment, until final payment; costs of suit on a party and
party scale, and further and/or alternative relief.3
[5] The plaintiff specifically alleged that he has suffered damages in the total
of R5 260 624.00, made up as follows: R20 000.00 for estimated past
hospital and medical expenses; R200 000.00 for estimated future hospital
and medical expenses; R3 990 624.00 for estimated past and future loss
of earnings and earning capacity; and R1 050 000.00 as estimated general
damages. The amount claimed for future loss of earning capacity
allegedly follows from the significant bodily injuries suffered by the plaintiff,
which has affected his.working capacity.4
[6] The defendant conceded 100% (one hundred percent) liability in favour of
the plaintiff. The latter would therefore be entitled to hundred percent of
his proven loss or damages emanating from the collision, as contemplated
in Section 17(1) of the Act. The plaintiff's claim for general damages and
future hospital and medical expenses were also settled between the
parties.
[7] The foregoing notwithstanding,. the defendant persisted with its denial of
any indebtedness to the plaintiff in the sum claimed or any portion thereof.5
SALIENT BACKGROUND FACTS:
The first accident:
[8] It is so that during 2007 the plaintiff was involved in a motor vehicle
collision.6 In this regard, the plaintiff instituted legal action against the
3 PplS-16, Pleadings, Vo l I
4 Hereinafter referred to as "the second/current claim"
5 Pp22, Paragraph 9.3, Ibid
6 He reinafter refeJTed to as "the.first collision"
Page 5
defendant under the Act, before it was amended vide the Road Accident
Fund Amendment Act 19 of 2005.7 It is so that prior to being amended in
2005, the Act had no limitations in respect of loss of earnings.
[9] It is common cause that the plaintiff sustained the following injuries in the
first collision; to wit: soft tissue injury with a ligament tear of the left knee;
fracture of the right hip; dislocation of the left shoulder; and a head injury.
[10) The following is also common cause; to wit the plaintiffs first claim was
settled by one Josephs Incorporated, his erstwhile attorneys, the plaintiff
has no knowledge of how and for which damages he. was compensated
for by the defendant, the claim for past and future loss of earnings was
settled in the amount of R2 266 977.52 on 07 January 2011.
[11] It is against this backdrop that on 05 August 2024 on the day the trial
commenced, the defendant amended its plea in terms of Rule 28. In
relevant part, the said amendment alleged as follows, with regard to
paragraph 11 of the particulars of claim, which deals with the plaintiff's
alleged loss and damages:
8.
"Ad paragraph 11 and sub-paragraphs:
8.1 The defendant has no knowledge of the damages which the plaint([{
al!eged~y suffered, accordingly does not admit same, puts the plaintiff
to the proof thereof and reserves the right to lead evidence in rebuttal
thereof
8.2 The plaintiff lodged a claim against the defendant as a result of
injuries sustai11ed in a motor vehicle accident /that] occurred in the
year 2007. 8 The plailltiff's claim was/or general damages, past and
future loss of earni11gs a11d past and future medical expenses. 9
7 Hereinafter referred to as ''the Amendment Act"
8 Hereinafter referred to as "the first collision"
9 Hereinafter referred to as "the.first claim"
Page6
8.3 The claim was settled o,i the 07'" of January 2011. The settlement
was on the basis that the illjuries sustai1ted by the plai,itiff were
serious and permanent in nature. A1td further, that the injuries
sustained affected the plailitiff's ability to work until retirement
Thus, the plaintiff would not be able to continue working.
8.4 As a result, the amount of R550 000.00 for general damages and
R2 266 977.52 for past and future loss of earnings was paid to the
plaintiff:
8.5 The plaintiff has already been compensated for loss of earning until
retirement age. Defendant avers that paying the plailltijf's claim for
loss of earning again in this matter· will amount to double
compensatio11 a11d therefore the claim should be dismissed with
costs. "10
[12) No objection with regard to the foregoing was raised by the plaintiff.
Instead, on the same day, in lieu of making consequential adjustment as
contemplated in Rule 28(8), the plaintiff replicated as follows to the
foregoing, without any objection by the defendant:11
''Ad paragraph 8.1 to 8. 5:
I. The plaintiff denies all the allegations contained in these paragraphs, save
for the admissions made herein below:
10 Emp hasis supplied
1. I. The plaint[ff lodged a claim Jo;-the defendant in respect of tlie
col/isio11 that occurred during 2007 ("the 2007 collision");
1.2. The plaintiff lodged a claim witJi the defendant in respect of the
collision that occurred 011 13 December 2014 (''the 2014
collision");
1.3. That the defenda11t made a11 offer of settleme11t for past a11d
future wss of ear11i1tgs to the plai11tiff bt respect of the 2007
collisio11 i11 au amou11tofR2 266977.52 whicltofferofsettlement
the plai11tiff accepted (''the settleme11t'');
1.4. The plai11tiff's claim i11 respect of the 2007 collisio11 was settled
011 07 Ja11uary 2011;
11 This rule expressly stipulates as follows:
"(8) Any party qffecte.d by an amendment may, within J 5 days after the amendment has been effected or
within such other period as the court may determine, make any consequemial adjustment to the documents
.filed by him and may also take the steps contemplated in rule 23 and 30."
Page 7
1.5. TJ,e settlement was paid to t/,e plaintiff;
J. 6. Th e settlement was made a settlement of a partial loss of earnings
of the plaintiff, a11d the plaintiff still being able to eam an inc<>me
on a lower level a11d at a different co111pa11y than J,e would have
!tad, had tire 2007 collision 11ot occllrred;
J. 7. The settlement was made 011 the basis that /,e plaintiff will
co11tillue to have a residual earning capacity although not on the
same level than he would have had, had the 2007 collisum not
occurred;
1.8. The settlement was at 110 stage made t.o compensate the plaintiff
for a total loss of eamings and havi11g 11-0 residual ear11i11g
capacity;
1. 9. The plai11tiffon 14 July 1014 obtained 011 actuarial calculatio11,
calc11lati11g t/,e plai11tifj's probable total loss of earnings due to
the 1007 collisio11. This ca/culatio11 is attached hereto as
A11nex11re "A";
J. I 0. A 111,exure "A " shows that after conti11ge1icy deductions, the
plaintiff would /,ave suffered a total loss of eamings ;,, the
amount of R8 941 682.00 had he been compe11sated for a total
loss of eamil1gs wit/, 110 resid11al earnillg capacity; and
1.1 J. WJ,e11 the 1007 collision occurred, t/,e settlement was made i11
terms of the Road Accident Fund Act 56 of 1996, 110 limitations
011 loss of eami11gs were applicable.
2. The settlem ent pleaded by the defendant Jo,: past andfi,ture loss of earnings
suffered by the plaintiff due to the 2007 collision confirms that:
2.1. There was no reduction in the total am ount claim ed for loss of
earnings (as per the Road Accident Fu nd Am endm ent Act /9 of
2005);
2.2. The settleme11t was made for a partit1/ loss of eami11gs a1td there
was at 110 stage 011 illte11tio11 beht•ee1t t/,e parties to settle the
plai11tiff's claim on the basis that the plai11tiff will 11ever be able
to eam a11 i11co111e again; and
2.3. The plai11tiff always had a residual eamil1g capacity after the
1007 collisio11. "'2
2.3. The plai11tiff always had a residual eamil1g capacity after the
1007 collisio11. "'2
[13] By agreement between the parties, on 06 August 2024, this Court granted
the plaintiff leave to adduce various expert evidence by way of affidavits in
12 Em phasis supplied
Page8
terms of Rule 38(2) of the Uniform Rules of Court.13 Consequently, the
following expert reports were admitted on affidavit, to wit: orthopaedic
report, clinical and neuropsychologist report, industrial psychologist report,
occupational therapist report, neurologist report, clinical psychologist
report, and actuarial calculation report. Accordingly, the facts and opinions
contained in the said reports constitute incontrovertible evidence without
any further proof thereof. No further evidence was thus led at the trial, by
either party.
[14) The parties closed their cases in turn and delivered written closing
arguments. The plaintiffs main closing argument was delivered on
05 August 2024. The defendant thereafter delivered its main closing
argument on 16 August. Thereafter, the plaintiff supplemented its main
argument on 29 August 2024.
ISSUE FOR DETERMINATION:
[15] Regard being had to the foregoing; the following singular issue fell for
determination by this Court; to wit whether the plaintiff is entitled to an
award for past and future loss of earnings because of the injuries sustained
by him in the said collision, regard being had to the settlement of same by
the defendant in January 2011, as part of the settlement agreement
entered into between the parties, arising from the plaintiffs first collision.
Coterminous to this is whether the impugned settlement of 2011 was for
total loss of earnings or for partial loss of earnings.
13 T his rule provides as follows:
''(2) The witnesses at the trial of any action shall be orally examined, but a court may at any time, for
sufficient reason, order that all or any of the evidence to be adduced at any trial be given 011 affidavit or that
the affidavit of any witness be read at the hearing, on such terms and conditions as to it may seem meet:
Provided that where it appears to the court that any other party reasonably requires the attendance of a
witness for cross-examination, and such witness ca11 be produced, the evidence of such witness shall not be
gh•en 011 affidavit. "
Page9
COMMON CAUSE FACTS:
[16] What follows is common cause. The plaintiff completed the equivalent of
grade 10 and thereafter completed his apprenticeship in 1989 at AfriSam.
In 1990, he obtained a certificate in fitting and turning. He also has a valid
code EB driver's license. The plaintiff was then employed as a qualified
fitter and turner with Anglo Alpha Cement Factory until the first collision in
2007. The plaintiff then farmed with his father and later sold his shares in
the farm. He thereafter remained unemployed until he obtained
employment as a fitter and turner in July 2014 through one Swift Human
Resources subcontracted to one Jormid in Kathu. He remained employed
as such until the second collision occurred on 13 December 2014.
[17] The plaintiff in casu earned as follows: (a) 31 October 2014, he earned a
total amount of R35 214.00, consisting of the following: R28 898.00 basic
salary; R6 168.00 overtime; R1 338.00 overtime during public holidays;
and R810.00 shift allowance; (b) 30 November 2014, he earned a total
amount of R28 440.00, consisting of the following: R21 516.00 basic
salary; RS 004.00 overtime; and R1 920.00 overtime; and (c) 31 December
2014, he earned a total amount R25 994.40, consisting of the following:
R18 200.00 basic salary; R5 924.40 in lieu of leave; and R3 370.00
overtime.
[18] The average estimated total earnings of the plaintiff during 2014 was
R29 882.86. It is probable that the plaintiff would have continued with his
employment, receiving inflationary increases until retirement at the age of
65. The injuries the plaintiff sustained in the 2014 collision have rendered
him unemployable and incapable of returning to his previous employment.
It is unlikely that he will find employment of any nature in future. The
plaintiff is accordingly unemployable as a result of the injuries sustained in
the second collision.
P age 10
THE PARTIES' CONTENTIONS , IN SUM :
Defendant's:
[19) For the defendant, Mr MA Mogano contended that the legal principle in
respect of a claim for diminished earning capacity is trite, viz: the plaintiff
must be placed in the position he would have been in had the injuries not
occurred. To succeed in the claim for loss of income or earning capacity,
the plaintiff has to establish on a balance of probabilities that as a result of
the accident. he has lost future earning capacity - Rudman v RAF 14
[20] That the plaintiff was "reportedly" found medically unfit to work due to the
injuries he sustained in the first collision; declared disabled and lost his
total income; or could not generate any income as a fitter and turner.
Consequently, and whilst he was still on disability and not generating any
income, the plaintiff was compensated to the total sum of R2 816 977.52,
which was made up of R550 000.00, for general damages and
R2 266 977.52, for past and future loss of income.
[21] Prior to the second accident, the plaintiff had sustained serious and
permanent fracture of the hip, fracture dislocation of the shoulder, and
knee injury. He was already disabled and unfit to work as a fitter and turner
due to the hip injury.15 The plaintiff lost capacity to generate income as a
fitter and turner, left employment. He received no income and therefore
suffered total loss of income. When his claim was assessed and settled
by the Road Accident Fund in the year 2011, the plaintiff was still disabled
and not working. He had to be compensated for all damages he suffered.
14 2003 (2) SA 234 (SCA)
15 Page 41 - Clinical Ne uropsychologist Report, and page 91 -Occupational Th erapist Report, Vol 8
Page 11
[22] It was further submitted for the defendant that the injuries sustained by the
plaintiff in the first accident were serious and permanent; rendered him
disabled, and consequently, he lost his total income as a fitter and turner,
as indicated by experts. That the court should accept that the
compensation was paid on the same basis by the defendant. The plaintiff
had no other qualification or remarkable work-related skills. He was a
severely disadvantaged job seeker who was essentially functionally
unemployable. The physical requirement of a fitter and turner in general
fall into the heavy physical demand range. Ms Kim Kaveberg stated in her
report that the plaintiff was placed on disability benefits, thereafter, he
bought a farm and farmed for approximately five years. Due to drought,
the farm experienced difficulties, and he had to look for work. He resumed
work in June 2014 through Swift.
[23] That whilst it is within the claimant's personal rights to seek employment,
or· continue working despite having been compensated for total loss of
income until retirement age, however, should the claimant be involved in
another collision while working as such, the plaintiff is not entitled to loss
of income as he had been previously compensated for total loss of future
income. The defendant accepted the Occupational Therapist's opinion
that the defendant had to look for work because his farm business
experienced difficulties. It was not because the plaintiff had the capacity
to work as a fitter and turner, so the argument went.
[24] That the plaintiff was already declared medically unfit to work as such.
Due to financial difficulties, the plaintiff elected to ignore the medical
opinions and hunted employment as a fitter and turner, despite being
declared medically unfit to work as such. That whilst the defendant does
not have any legal provision that prohibits the plaintiff to seek employment
or continue working despite having been compensated for his total loss of
or continue working despite having been compensated for his total loss of
income until retirement age, it is so that since the plaintiff was
compensated for total past and future loss of income, he is not entitled to
Page 12
claim past and future loss of earnings in the second claim as same will
amount to "double compensation".
[25] In sum, it was submitted for the defendant that to the extent that the injuries
sustained by the plaintiff in the first accident were serious and permanent,
as a result, he was declared disabled and found medically unfit to work
and subsequently left employment, he suffered total loss of income, and
he was compensated as such.
[26] The plaintiff therefore ignored the fact that prior to the second accident, he
was disabled and declared medically unfit to work as a fitter and turner.
To this extent, he had already lost his total past and future income, and
the defendant had compensated him as such. The plaintiff's claim for past
and future loss of earnings in this matter will therefore amount to "double
compensation".
(27] The defendant referred this Court to the provisions of Section 7 of the Act,
which states that the resources and facilities of the defendant shall be used
exclusively to achieve, exercise and perform the object, powers and
functions of the defendant, respectively. The defendant also referred this
Court to Busuku v Road Accident Func/16, where it was pointed out that
the defendant relies entirely on the fiscus for its funding, and it should be
protected against illegitimate and fraudulent claims.17 Reference was also
made to Road Accident Fund v Sheriff of the High Court, Pretoria East
and Others18 where it was stated that the defendant has the duty to
protect funds and ensure that they are used efficiently.19
16 [2016) 3 AJI SA 498 (EC M)
17 Paragraph 7
18 (028726/2022) (2023] ZA GPP HC 746 (28 A ugust 2023)
19 Paragraph 75; see also paras 77-78
Page 13
[28] In conclusion, it was submitted for the defendant that the plaintiff has failed
to prove on a balance of probabilities that he has suffered past and future
loss of earnings. In light thereof, the plaintiff's claim for this head of
damages stands to be dismissed with costs.
Plaintiff's:
[29] For the plaintiff, Mr JC-Prinsloo contended that the defendant's averment
in paragraph 8 of its amended plea that the injuries of the plaintiff in the
first collision were serious and permanent and that same rendered the
plaintiff to be unemployable as a result whereof the plaintiff suffered a total
loss of earnings; remain mere · allegations and cannot be accepted as
evidence until such time as the defendant proves same. That it is so since
no evidence was adduced by the defendant in this regard. Accordingly,
these allegations cannot be accepted as the defendant failed to relieve
itself of its burden of proof.
[30] That the defendant's argument is not supported by any evidence, as the
defendant failed to prove that the amount of R2 266 977.52, was for a total
loss of earnings suffered by the plaintiff due to the injuries in the first
collision. That to the contrary, the plaintiff has clearly shown that any
award for a total loss of earnings due to the first collision would have been
in the region of R8 900 000.00. There is no evidence before this Court of
any double compensation, illegitimate or fraudulent claim in respect of the
plaintiff's claim for loss of earnings due to the second collision.
[31] The reference by the defendant to Section 7 of the Act and Busuku v
Road Accident Fund(2016) 3 All SA 498 (ECM) has no application to the
facts of this matter as the defendant failed to prove that the plaintiff's claim
for loss of earnings due to the second collision results in an illegitimate or
fraudulent claim. No such evidence was ever placed before the Court.
Page 14
[32] The defendant's reliance on Rudman v RAF is misplaced. That on proper
construction of the facts in Rudman, the case actually confirms the
plaintiff's claim for loss of earnings due to the second collision. The
evidence before this Court is clear that at the time of the second collision,
the plaintiff: (a) was employed as a fitter and turner; (b) derived an income
from this employment; ( c) the income he earned was a lot lower than the
income he earned at the time of the first collision (which was expected
considering the injuries he sustained in the first collision); and (d) as a
result of the injuries sustained in-the second collision, the plaintiff is unable
to be employed.
[33] There is no evidence before this Court that the settlement in respect of the
first collision was made for a total loss of earnings. There is also no
evidence to sustain the defendant's defence of double compensation. The
allegation that the plaintiff was compensated in the first collision for a total
loss of earnings must be proved by the defendant, which the defendant
failed to do. The evidence before this Court clearly shows that the
settlement of loss of earnings suffered due to the first collision was for a
partial loss of earnings.
[34] The plaintiff obtained an actuarial calculation dated 24 June 2021 .20 It was
submitted for the plaintiff that the actuarial calculation was done on the
correct evidence and principles and that same could be relied upon by this
Court for the benefit of the defendant, as an updated calculation will
increase the plaintiff's damages; that should recent calculations be
obtained, the damages of the plaintiff will increase. In the premise, the
defendant's defence should be dismissed with costs and the plaintiff
compensated for his loss of earnings due to the second collision in the
amount of R3 990 624.00, with costs on scale C as per the order handed
up.
20 Pp76-82, Vol 8
Page 15
DETERMINATION:
(35] Whilst the plaintiff makes no mention in his original or amended particulars
of claim of the first accident or any diminished earning capacity arising
therefrom. This only emerges in replication. Regard being had to this, the
following is of significance, with regard to the foregoing. First, it is so in
our-law that a replication must not only be consistent with the allegations
in the particulars of claim, but may also not increase the ambit of the claim.
Second, a replication must be in answer to or as a result of the allegations
contained in the plea. Third,.it may not contain a new cause of action. If
it does, the defendant may ignore it.21
[36] The plaintiffs replication is not only in answer to or as a result of the
allegations contained in the amended plea, it is also consistent with the
allegations contained in the particulars of claim. It further does not contain
any new cause of action.
(37] The nub of the dispute between the parties is therefore whether the
plaintiffs claim for loss of past and future earnings in casu would amount
to double compensation, regard being had to the fact that his first claim,
settled in January 2011, was inclusive of his past and future loss of
earnings. In this regard, the defendant referred this Court to Rudman,
without more.
[38] Whilst Rudman's claim was also about loss of income, allegedly suffered
by the appellant (Rudman), who was involved in two accidents at the time
he was examined by the relevant experts. A careful scrutiny of the facts
of that case would have revealed that questions on which the court had to
decide were: Firstly, whether the appellant had suffered loss of income as
a result of the fact that a maintenance manager had to be employed by the
21 Ex tel ludustrial 11 C row 11 Mills 1999(2) SA 719(SCA)
Page 16
company. Secondly, whether there was any loss of future earning capacity
as a result of the appellant's permanent incapacity from earning a living as
a professional hunter.
[39] If the answer to the last question was · in the affirmative, the question of
quantification of the loss of earning capacity would arise. According to the
pleadings, he would have·hunted .. for 150 days per year at R600 per day
until the age of 65, and he was also partially incapacitated as a farmer. In
this regard, there was evidence to the effect that the company, which he
was the majority shareholder. of,. would have .to employ a maintenance
manager at a salary of R8 000 per. month for the next 10 years to
supplement this incap·acity.
[40] The trial judge (whose decision was confirmed on appeal) dismissed both
claims on the ground that the plaintiff failed to prove that his patrimony was
diminished due to any loss of earning capacity past or future resulting from
his injury, and consequently, he has failed to prove any entitlement to be
compensated. This decision was reached because, according to the court
a quo (Liebenberg J), "[a]ny loss which may have occurred as a result
thereof (the injuries suffered bythe plaintiff) is a loss to the company and
not to the plaintiff's private estate" (as quoted by Jones AJA at 239H).
[41] The two accidents appeared to have been very serious, with the first
keeping him out of his job for at least three months, while the next one kept
him away for about nine months. The following can be gathered from a
proper reading of Rudman, which is distinguishable vis-a-vis the matter in
casu. The Supreme Court of Appeal22 upheld the Court a quo's decision
to dismiss Rudman's claim on the ground that, although he had proved
disabilities which, potentially, could give rise to a reduction in his earning
capacity, Rudman failed to prove that this had resulted in patrimonial loss
22 H ereinafter referred to as "tire SCA"
Page 17
to him. That it is so since the loss of earnings and/or earning capacity the
appellant had allegedly suffered was actually a loss to the company in
which he was a majority shareholder and not his private estate.
[42] The defendant's main contention that, having been paid compensation for
past and future loss of earnings in settlement of his first claim, the plaintiff
is not entitled to . compensation, .as • that would amount to double
compensation is very ·tenuous .. · It is so simply because whether
compensation payable by the•defendant to the plaintiff in casu will amount
to. a double compensation essentially depends on it being established by
the defendant that the first payment made to the plaintiff by the defendant
was in respect of the same injuries for which the payment in casu is sought
against the defendant.
[43] It is not so in casu because whilst the defendant in its plea reserved the
right to lead evidence in rebuttal of the. nature, .degree and extent of the
plaintiff's injuries, it has not done so. To the contrary, in paragraph 7.2 of
the pre-trial minute, dated 24 April 2023, it is recorded that the defendant
admitted the plaintiff's injuries pertaining to the second collision and the
seriousness thereof. • · Significantly, as alluded above, it was only
contended for the defendant that prior·to the second accident, the plaintiff
had sustained serious and permanent fracture of the hip; fracture
dislocation of the shoulder and knee injury. The defendant has therefore
failed to establish that the first payment made to the plaintiff by the
defendant was in respect of the same injuries for which the payment in
casu is sought against the defendant.
[44] A mere allegation of settlement of loss of earnings up to the retirement on
the part of the defendant, without more, is also insufficient to sustain the
defendant's double payment defence. The mere statement of an amount
paid towards loss of earnings arising from the first collision, without more,
paid towards loss of earnings arising from the first collision, without more,
also does not take its case any further. The defendant has therefore failed
Page 18
to establish an essential element pertaining to the principle of "double
compensation", i.e. that the initial payment was in respect of the same
injuries. Compounding this challenge is the defendant's failure to evince
the plaintiffs lack of residual earning capacity, post 2007 collision.
[45] Another aspect that routs the defendant's double compensation argument
is the fact that the defendant did not adduce any jot of evidence to. prove
that the 2011 settlement was ·entered into between the parties on the basis
that the injuries sustained by the plaintiff were serious and permanent in
nature; or that the plaintiff would not be able.to continue working.
[46] The defendant's reliance on Section 7 of the Act; Busuku and Sheriff of
the High Court, also does not enrich the discussion. Reliance on the
foregoing clearly evinces that the defendant has completely misconstrued
the true basis of the plaintiff's claim and the effect of the evidence relevant
thereto.
[47] It is trite that in claims for unliquidated damages, the plaintiff is expected
to lead evidence to prove its loss. This is the norm irrespective of whether·
the claim is defended or not. Regardless of the pleadings or concessions,
the Plaintiff has a duty to prove damages by leading evidence ..
Conterminously, it is also so that to succeed in the claim for loss of income
or earning capacity, the plaintiff has to· establish on • a. balance of
probabilities that as a result of the accident, he has lost future earning
capacity - Rudman v RAF 23
[48] It was submitted for the plaintiff that the amount pertaining to loss of past
and future earnings with regard to the first claim proves that the said claim
was settled on the basis that the plaintiff still had a residual earning
2l 2003 (SA) 234 (SCA)
Page 19
capacity. That it is so, regard being had to the actuarial report attached to
the plaintiff's replication as annexure A Whilst it is so that actuarial
calculations only provide a guideline to a court and does not bind it,24 the
following has been well said about the role of actuaries by Fisher J in MS
v Road Accident Fund:25
"Actuaries rely on look-up tables which are produced with reference to statistics.
Such statistics are derived, inter alia, from surveys and studies done local(v and
internationa!Zv in order to establish norms, representativeness, and means. From
these surveys and studies, baseline predictions as to the like(v earning capacity of
individuals in situations comparable to that of the plaint![{ are set. These base/hie
predictions are then annlied to a plaintUT's position usim! various assumptions
and scenarios which should eroverlv be gleaned from proven facts.
The general approach is to posit the plain[!/J, as he is proven to have been in his
uni1rjured state and then to apply assumptions as to his state with the proven
injuries and their sequela. The deficits which arise between these scenarios (if
any) are then translated with reference to the various baseline means and norms
used These exercises are designed with the aim of suggesting the various types
of employment which would hypothetically be available to the plaintiff in both
states. The loss would then be calculated as the difference in earnings derived
between the pre-accident (or pre-morbid state as it is often called) and post
accident or post morbid state.
In this exercise, uncertainty as to the departure from the norms, such as ear~y
death, the unemployment rate, illness, marriage, other accidents, and countless
other factors unconnected with the plaintiff's injuries ·which 1,,1,01lfd be likely, in
the view of the court, to have a bearing both on the established baseline used by
the actumy and on the manner in which the plaint(/J, given his particular
the actumy and on the manner in which the plaint(/J, given his particular
circumstances, would fare as compared the established norm are dealt with by
way of "contingency" allowances. Given the pwported mathematical and
percentage-based inqui,y of the actuarial assessment, these contingencies are
expressed in percentages which are brought to bear on the rnathernatical
reflections which have been derived from the assumptions used. In essence the
platform for assessment is no more than one a technique which is offered to the
court in a bid to all01v it to exercise its discretion. This mechanism should not be
understood as being prescriptive or co11/ining of the assessment that the court is
called 011 to make. The court has a wide discretion as to the assessment of loss.
This task is judicial and is.founded to a large extent on e>.perience, intuition, and
general right-thinking. '126
24 Lambrakis•• Santam 2002(3) SA 710(SCA)
25 [2019) 3 All SA 626 (GJ) para 39-41
26 Emphasis supplied
Page 20
[49) In claiming compensation for the loss of past and future earnings, the
plaintiff in effect claims to be compensated for the diminution of his residual
earning capacity which, but for the second collision, could have been
commercially exploited in his field of employment. The fact that the
defendant settled the plaintiffs first claim for past and future earnings from
a different cause of action did not, in my opinion, without more, result in
the extinction of his residual earning capacity.
[50] This Court finds that regard being had to the facts and circumstances of
this case; the plaintiff has suffered serious and permanent disabilities as a
result of the second collision. These disabilities are of a kind which
resulted in him suffering pecuniary damages in respect of past and future
loss of earnings.
[51] It is so that in our law, if it is certain that pecuniary damage has been
suffered by the plaintiff, this Court is bound to award damages. It is,
however, incumbent for the plaintiff to be awarded such damages to lead
such evidence as is available to it (but of adequate sufficiency) so as to
enable the Court to quantify his damages and to make an appropriate
award in his favour. The plaintiff has obtained an actuarial calculation
dated 24 June 2021. It has been submitted for the plaintiff that this report
could be used because an old actuarial calculation normally benefits the
defendant, as opposed to a current one. The plaintiff has handed up a
draft order to this effect. Nothing has been put up by the defendant to
second guess the foregoing.
[52] This Court finds that the actuarial calculation dated 24 June 2021,
submitted by the plaintiff, is adequate to enable this Court to quantify the
plaintiffs damages and to make an appropriate award in his favour. This
Court is therefore inclined to grant an order in concert with what is
foreshadowed in the draft order.
Page 21
[53] The amounts and legal questions involved are substantial and complex.
The appointment of a senior-junior counsel on behalf of the plaintiff was
therefore meritorious. Costs will be awarded commensurately.
ORDER:
[54] In the premise, the following order issues:
1. THE DEFENDANT SHALL PAY TO THE PLAINTIFF AN AMOUNT OF
R3 990 624.00 (THREE MILLION NINE HUNDRED AND NINETY
THOUSAND, SIX HUNDRED AND TWENTY-FOUR RAND) IN
RESPECT OF THE PLAINTIFF'S LOSS OF PAST AND FUTURE
EARNINGS.
2. PAYMENT OF THE SAID AMOUNT SHALL BE MADE INTO THE
ACCOUNT OF THE PLAINTIFF'S ATTORNEY OF RECORD BY MEANS
OF DIRECT ELECTRONIC FUNDS TRANSFER INTO THE SAID
ATTORNEY'S ACCOUNT.
3. THE DEFENDANT SHALL PAY THE PLAINTIFF'S TAXED AND/OR
AGREED PARTY AND PARTY COSTS ON SCALE C, WHICH SHALL
INCLUDE BUT NOT LIMITED TO:
3.1. THE COSTS OF TRIAL FOR 05 AND 06 AUGUST 2024.
3.2. THE COSTS OF OBTAINING ALL MEDICO -LEGAL REPORTS;
ACTUARIAL REPORTS FROM THE PLAINTIFF'S EXPERTS
FURNISHED TO THE DEFENDANT, INCLUDING THE RAF1
AND 4 FORMS OF ALL THE EXPERT REPORTS DELIVERED
ON BEHALF OF THE PLAINTIFF IN THESE PROCEEDINGS .
3.3. THE COSTS OF PREPARATION AND RESERVATION FEES
AND COSTS TO ATTEND THE TRIAL OF THE FOLLOWING
EXPERTS , WHO ATTENDED THE TRIAL; TO WIT: (A)
Page 22
DR BARLIN, THE ORTHOPAEDIC SURGEON; AND (B)
MS ROSSOUW, THE INDUSTRIAL PSYCHOLOGIST.
4. THE FOLLOWING SHALL APPLY WITH REGARDS TO THE
DETERMINATION OF THE AFOREMENTIONED TAXATION OF
COSTS:
4.1. THE PLAINTIFF SHALL SERVE THE NOTICE OF TAXATION
ON THE DEFENDANT'S ATTORNEY OF RECORD; AND
4.2. THE PLAINTIFF SHALL ALLOW THE DEFENDANT 14
(FOURTEEN} COURT DAYS TO MAKE PAYMENT OF THE
TAXED COSTS FROM THE DATE OF TAXATION; AND
5. THE PLAINTIFF SHALL BE ENTITLED TO RECOVER INTEREST AT
THE RATE OF 7% (SEVEN PERCENT) , FROM THE EXPIRATION OF
THE 14 (FOURTEEN) COURT DAYS AFTER TAXATION.
For the Plaintiff:
For the Defendant:
NXUMALOJ
HIGH COURT OF SOUTH AFR ICA
NORTHERN CAPE DIVISION,
KIMBERLEY
ADV JC PRINSLOO
CN Sweetnam Attorneys, Johannesburg
c/o PGMO Attorneys, Kimberley
MRMAMOGANO
Office of the State Attorney