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JUDGMENT
BOTSI-THULARE AJ

Introduction
[1] This is a delictual claim for damages resulting from injuries sustained by the
plaintiff, Alberto Leonardo Chivambo, as a result of a pedestrian vehicle accident
which the plaintiff was a pedestrian. Negligence have become settled between
parties and the matter is before this court on the aspect of quantum only. The
issue of merits was settled 80% in favour of the plaintiff. The parties agree that
jurisdiction is not in dispute. The parties agree that locus standi is not in dispute.
[2] In a nutshell, this court is required to determine quantum in relation to general
damages and past and future loss of earnings . The plaintiff also seeks a section
17(4)(a) undertaking for his future hospital and medical expenses in terms of his
agreed and/or proven damages subject to the apportionment.
Factual background
[3] On 25 November 2019 the plaintiff sustained injuries as a result of a pedestrian
accident which happened along Mhlambi Street, Tembisa. Since the accident, it
is alleged that the plaintiff complains of ongoing chest pain over the left chest
wall, worse on physical exertion and during colde r weather and the chest pain
interferes with his ability to work as before.
[4] The plaintiff also has scars and defects of the left hemithorax as a result of the
accident. It is also alleged that an intercostal drain was inserted in the left
hemithorax. The scar is hyperpigmented. Suture tract marks are available on
either side of the scar. The scar is stable, with no areas of breakdown or
adherence to the deeper underlying structures present. The scar is permanent
and the scar is not amenable to surgical correction.

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[5] The plaintiff appointed experts whose reports have been submitted to this court
as expert evidence. The defendant has not appointed any experts. Below is the
summary of each of the expert reports.
Pulmonologist expert report
[6] The Pulmonologist, Dr PJ Viviers, opined that the plaintiff sustained a blunt injury
to the chest causing multiple left – sided rib fractures and a pneumothorax,
together with a scalp laceration due to the accident. He received medical
treatment from Tembisa Hospital, which included placement of an intercostal
drain.
[7] Dr Viviers stated that the plaintiff reports ongoing chest wall pain and states that
the pain is sufficient to interfere with his daily functioning. Accordingly, a
diagnosis of post - traumatic chest wall syndrome is relevant. Furthermore,
despite optimal improvements in his lung function, neuropathic pain tend to follow
a protracted course, with variable response to treatment.
[8] Dr Viviers opined that despite 30% Whole Person Impairment (WPI), he qualifies
for serious injuries under the narrative test. As a result, future medical treatment
is foreseen and based on data regarding chest wall injuries, it is not certain
whether he will ever be pain -free, given the time that has lapsed since the
accident.
[9] According to Dr Viviers, the plaintiff will in future require conservative treatment
with analgesics and no further additional pulmonary or thoracic intervention is
foreseen. To this end, Dr Viviers opined that therapy will include provision of
analgesics and anti –inflammatory therapy at a cost of R2 400.00 per annum.
Further, the plaintiff will need Tramadol medication which should cost R3 600.00
per annum. He will also need neuromodulatory aids, which cost R4 800.00 per
annum, to alleviate neuropahic pain caused by blunt chest trauma.
Occupational Therapist expert report
[10] The Occupational Therapist opined that i t can be concluded that the plaintiff is

[10] The Occupational Therapist opined that i t can be concluded that the plaintiff is
currently restricted to sedentary, light and medium work. His pre -accident work

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as a self-employed upholsterer is classified as medium and occasionally heavy
work.
[11] The Occupational Therapist further stated that the plaintiff is currently not suited
for heavy occupations . Accordingly, it remains justifiable that he employed an
assistant to assist him with heavier lifting because he will struggle to handle
various items and he will be restricted to handling items of his safe lifting capacity
of 20 kg.
[12] According to the Occupational Therapist, the plaintiff’s current work as a self -
employed upholsterer is classified as medium work. He is expected to continue
with his current work until normal retirement age. However, because medium
work exacerbated the chest symptomology, it is expected that he may take longer
to complete tasks due to the need for frequent rest breaks. His productivity and
efficacy may therefore be affected.
[13] The Occupational Therapist therefore concluded that the claimant may not be
able to return to his pre -accident vocational potential. Any persistent pain and
symptoms following treatment, will continue to impact on his work capacity in the
future. If symptomology persists, he will continue to rely on an assistant for heavy
work tasks. This will have a detrimental effect on his income generating capacity.
[14] The Occupational Therapist stated that it should be noted that the plaintiff only
has a Grade 7 level of education. His English proficiency levels are poor,
especially expressive language, and he has only worked as a builder and
upholsterer. Thus, he is restricted to manual work in the unskilled or low
semiskilled domain. His caree r options have therefore been narrowed
considerably should he ever want to return to the formal open labour market, as
most unskilled or low semiskilled occupations fall in the m edium to very heavy
category of work. The accident has therefore caused occupational dysfunction.
Industrial Psychologist expert report

Industrial Psychologist expert report
[15] The Industrial Psychologist opined that, at the time of the accident, the plaintiff
was working in a self -employed capacity as an Upholsterer. He reports that his
duties included inter alia meeting with clients to discuss upholstery needs;

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purchasing upholstery supplies and materials; dismantling and preparing
furniture for reupholstering; measuring, cutting and stitching upholstery fabric;
and conducting quality checks on completed orders. He reportedly enjoyed this
work and continues to work in this capacity currently.
[16] According to the Industrial Psychologist, at the time of the accident, the plaintiff’s
income varied slightly from month to month depending on client demand for his
services. He received cash payments for his services and was therefore unable
to provide the Industrial Psychologist with documentary proof of his earnings.
However, according to a signed affidavit dated 21 July 2022, the plaintiff reported
that his average monthly profit amounted to R7 000.00, after expenses.
[17] The Industrial Psychologist opined that, over the course of his career, the plaintiff
built up experience working as a Piece Worker, Trainee Upholsterer, and
Upholsterer. At the time of the accident, he had been working in a self-employed
capacity as an Upholsterer for nearly eight years. He planned to continue working
in this capacity throughout the foreseeable future.
[18] Considering the plaintiff's low level of education (Grade 7), narrow skill set, and
extended history of self-employment, the Industrial Psychologist is of the opinion
that if the accident had not intervened, he would probably have continued
working in his pre -accident capacity until retirement at the approximate age of
70.
[19] According to the Industrial Psychologist, it is therefore anticipated that the plaintiff
would have continued earning at least around his premorbid levels throughout
the duration of his working career. It is noted that his pre - morbid earnings fell
slightly above the median of the salary scale for semi -skilled workers employed
in the non -corporate sector. The Industrial Psychologist is, however, of the
opinion that in the most probable scenario, based on his age (36), the plaintiff

opinion that in the most probable scenario, based on his age (36), the plaintiff
would have been able to work his way up to a ceiling falling below the upper
quartile of the salary scale for non -corporate semiskilled workers, as he
continued to build his skills and client base.
[20] The Industrial Psychologist stated that, a ccording to the Quantum Yearbook by
Robert Koch (2025 publication), the current salary scale for non-corporate semi-

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skilled workers is as follows: R3 392.00 - R7 250.00 - R19 000.00 per month. For
actuarial purposes, Industrial Psychologist recommends a probable earnings
ceiling of approximately R14 000.00 per month (in 2025 terms). It is estimated
that he would have reached this ceiling gradually by the age of 45, following
which only inflationary adjustments would have applied until retirement.
[21] The Industrial Psychologist opined that, but for the accident, the plaintiff would in
all likelihood have continued functioning at his pre-accident levels of productivity
and efficiency. In the event that he ever left self-employment at any point in his
career, he would have been capable of securing alternative employment in line
with his skills and experience elsewhere in the open labour market. He would
additionally not have been physically limited in the type of work that he was able
to perform.
[22] According to the Industrial Psychologist, a fter adequately recovering from his
accident-related injuries, the plaintiff resumed his premorbid self-employment as
an Upholsterer, and he continues to work in this capacity currently.
[23] However, as a result of the physical injuries sustained in the accident, the plaintiff
is no longer able to work in confined spaces, assume awkward positions, or
perform heavy physical tasks. He was, therefore, forced to hire an assistant in
the post -morbid scenario, whom he continues to employ to date. Despite the
ongoing assistance of his employee, the Plaintiff notes that there has been a
significant decline in his work productivity, and he is therefore unable to take on
as many client orders as before.
[24] The Industrial Psychologist opined that although he now struggles to perform his
work at the same level that he was capable of prior to the accident, the plaintiff
reports that he plans to continue working in his present capacity for as long as
possible. He relies on the income that his self-employment affords him to provide
for himself and his family.

for himself and his family.
[25] In the post-morbid scenario, the plaintiff’s income continues to vary on a monthly
basis depending on client demand for his services. He continues to receive cash
payments for his services and was therefore unable to provide the Industrial
Psychologist with documentary proof of his income. However, during a follow-up

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conversation with the Industrial Psychologist in March 2025, he indicated that his
business currently generates an average monthly revenue of R8 000.00.
[26] The Industrial Psychologist stated that the plaintiff remunerates his assistant
approximately R3 000.00, leaving him with an average gross monthly profit of
R5 000.00 (in 2025 terms).
Actuary expert report
[27] The Actuary provided the following summary of loss of income:
Past loss
Value of income but for the accident R 549 919
5% Contingency deduction R 29 746
R 283 808
Value of income having regard to the accident R 298 745
5% Contingency deduction R 14 937
R 283 808
Net past loss: R 281 365
Future loss
Value of income but for the accident R 2 721 904
15% Contingency deduction R 408 286
Net value of income but for the accident R 2 313 618
Value of income having regard to accident R 1 078 564
25% Contingency deduction R 269 641
Net value of income having regard to accident R 808 923
Net future Loss R 1 504 695
Total net loss: R 1 786 060

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[28] The Actuary stated that a contingency of 5% has been used for the past loss of
earnings and a contingency of 15% and 25% has been applied to the prospective
loss. The Industrial Psychologist recommends that a slightly higher than normal
contingency be used for the prospective loss “having regards to the accident”.
The total amount of compensation for the plaintiff’s past and future loss of
earnings therefore amounts to R 1 786 060.00, having regard to the
circumstances of the matter, together with the medico legal reports and evidence
at hand.
Issues
[29] Against this background, this court is required to determine quantum regarding
the following issues:
a. General damages
b. Future medical expenses; and
c. Past and Future loss of earnings.

Law Applicable

[30] I deal with each of these issues below.
General damages
[31] It is trite that the assessment of the quantum of general damages primarily
remains within the discretion of the court. In Pitt v Economic Insurance Company
Ltd1 the court stated the following:
“… [T]he Court has to do the best it can with the material available, even if, in the
result, its award might be described as an informed guess. I have only to add that
the Court must take care to see that its award is fair to both sides - it must give
just compensation to the plaintiff, but must not pour our largesse from the horn of
plenty at the defendant's expense.”

11957 (3) SA 284 (D) at 287E-F

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[32] In RAF v Marunga2 it was held that:
“[I]n cases in which the question of general damages arose, a trial Court had a
wide discretion to award what it considered to be fair and adequate compensation
to the injured party.
… .
There was no hard and fast rule of general application requiring a trial Court to
consider past awards, although the Court might derive some assistance from the
general pattern of previous awards.”
[33] In Protea Assurance Co. Limited v Lamb3 the court held:
“... [T]he Court may have regard to comparable cases. It should be emphasised,
however, that this process of comparison does not take the form of a meticulous
examination of awards made in other cases to fix the amount of compensation;
nor should the proce ss be allowed so to dominate the enquiry as to become a
fetter upon the Court's general discretion in such matters. Comparable cases,
when available, should rather be used to afford some guidance, in a general way,
towards assisting the Court in arriving at an award which is not substantially out of
general accord with previous awards in broadly similar cases, regard being had to
all the factors which are considered to be relevant in the assessment of general
damages. At the same time, it may be permissible, in an appropriate case, to test
any assessment arrived at upon this basis by reference to the general pattern of
previous awards in cases where the injuries and their sequelae may have been
either more serious or less than those in the case under consideration.”
[34] Against this background , I have considered decided cases with approximately
similar facts as in this matter. For instance, in Mgudlwa v Road Accident Fund4,
decided in 2010, the court made an award for general damages in the amount of
R300 000.00. The plaintiff had sustained an extremely comminated fracture of
the lower end of the femur and scars on the upper end of the left tibia. The injuries
had significant adverse effects on his legs, spine and hips. In Torress v Road

had significant adverse effects on his legs, spine and hips. In Torress v Road
Accident Fund5, a 24-year-old male who sustained a severe diffused brain injury,

2 2003 (5) SA 164 at 165B
3 1971 (1) SA 530 (A) at 535H-536B
4 [2010] ZAECMHC 13 (5 February 2010)
5 2007 (6) QOD A4 – 11 [GSJ]

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the soft tissue injury to the neck and soft tissue injury to the face was awarded
an amount that equates to R1 344 000.00 on the 2022 terms.
[35] Whilst there are certain similarities between these cases and this matter, each of
these cases differ on the facts and the considerations raised therein from the
present. They nevertheless serve as a guide to the general trend in the value of
awards made. To the extent that guidance may be derived from these matters I
have therefore considered them.
[36] In deciding on the reasonable and fair compensation, I was cognisant that it was
stated in Wright v Road Accident Fund 6 quoting Wright v Multilateral Vehicle
Accident Fund reported in Corbett and Honey where Broom DJP stated that
when having regard to previous awards one must recognise that there is a
tendency for awards now to be higher than they were in the past.
[37] I believe this to be a natural reflection of the changes in society, the recognition
of greater individual freedom and opportunity, rising standards of living and the
recognition that our awards in the past have been significantly lower than those
in most other countries.
[38] Accordingly, on a consideration on all the facts of the present matter and awards
previously made in similar matters, I have concluded that an award in the amount
R 1 500 000.00 would represent fair compensation.
Future medical expenses
[39] Regarding the plaintiff’s future medical/hospital expenses, the plaintiff seeks an
undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of
1996 (the RAF Act) as indicated by the experts in their medico-legal reports.
[40] Concerning the future medical treatment there appears to be no contentious
issues there. Even though no operations are envisaged, the reports show that
the plaintiff may need some pain medication and consultations from time to time
for the management of pain. It has not been contested that the plaintiff is entitled

6 [2011] ZAECPEHC 15 at para 23.

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to a section 17(4)(a) undertaking. and I am accordingly satisfied that the claim
on this head should succeed.
Loss of earning
[41] It is accepted that earning capacity may constitute an asset in a person's
patrimonial estate. If loss of earnings is proven the loss may be compensated if
it is quantifiable as a diminution in the value of the estate. 7 Accordingly, for a
claim to succeed, the injured person or plaintiff must prove that they suffered a
reduction in the earning capacity which will result in the actual loss of income.
[42] It must also be noted that, in Rudman v Road Accident Fund8, it was stated that
a physical disability which impacts on the capacity to earn an income does not,
on its own, reduce the patrimony of an injured person. In other words, the plaintiff
must prove that the reduction of the income earning capacity will result in actual
loss of income. He must prove the physical disabilities resulting in the loss of
earnings or earning capacity and also actual patrimonial loss.
[43] In this matter, the expert opinions are all of the view that the accident has resulted
in long -term physical restrictions that significantly limit the plaintiff’s ability to
perform his work as a self -employed Upholsterer. In this regard, Dr Viviers
(Pulmonologist) is of the opinion that the plaintiff now suffers from "post-traumatic
chest wall pain syndrome" and concludes that "it is not certain whether he will
ever be pain-free, given the time frame that has lapsed since the accident".
[44] Alternatively, the Occupational Therapist reports that the plaintiff is now
"restricted to sedentary, light, and medium work", adding that his work as an
Upholsterer is classified as medium work with occasional heavy physical work.
Considering his inability to perform heavy physical task s post -morbidly, the
Occupational Therapist states that it is reasonable that the plaintiff currently
employs an assistant.

employs an assistant.
[45] She goes on to note that while the plaintiff should be able to continue working in
his current capacity until the usual retirement age, he is likely to experience an

7 Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) at 409C-410A.
8 2003 (2) SA 234 (SCA) at para 11.

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ongoing loss in work productivity and efficiency. She additionally notes that he
will likely remain dependent on an assistant to help with the heavy physical tasks
associated with his work.
Analysis
[46] Having regard to the abovementioned expert opinions, the Industrial
Psychologist is of the opinion that, even with treatment, the plaintiff will probably
remain limited to work of a medium physical nature. In the post-morbid scenario,
he is therefore unlikely to ever be capable of performing the full range of tasks
associated with his work as an Upholsterer and will remain dependent on the
help of an assistant with regards to the heavy physical tasks associated with his
work.
[47] The Industrial Psychologist is therefore of the opinion that the plaintiff should be
compensated for the ongoing cost associated with employing an assistant in the
post-morbid scenario. Accordingly, the Industrial Psychologist recommends that
a monthly amount of R3 000.00 (in 2025 terms) be awarded to the plaintiff until
such a time that he retires at the approximate age of 70.
[48] Furthermore, the Industrial Psychologist is of the view that it is unlikely that the
plaintiff will ever achieve his pre-morbid potential in the post-morbid scenario. In
the event that he attempts to perform aspects of his work exceeding his post -
morbid physical capabilities, it will probably lead to increased levels of pain and
discomfort as well as a general deterioration in his condition.
[49] He is therefore of the opinion that the plaintiff will in all probability continue
earning around his current levels (R5 000.00 per month in 2025 terms) until
retirement at the approximate age of 70. It is noted that his current earnings fall
between the lower quartile and the median of the salary scale for non-corporate
semi-skilled workers.
[50] Based on the above expert report of the Industrial Psychologist, the Actuary
concluded that the total amount of compensation for the plaintiff’s past and future

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loss of earnings therefore amounts to R 1 786 060.00.
[51] In this regard, it should be noted that it is trite that the actuarial calculations must
be based on proven facts and realistic assumptions regarding the future. The
actuary guides the court in making calculations. The court has a wide judicial
discretion and therefore the final say regarding the calculations.
[52] In this matter, the Actuaries relied on the opinion evidence of the Industrial
Psychologists, who obtained information from the plaintiff as well the
Pulmonologist and Occupational Therapist . Having said that, t his court has a
duty to ensure that the information and opinion evidence upon which the
Actuaries relies on in their actuarial calculations is logical and properly motivated.
[53] In fact, it has been stated that it is the duty of the trial court to ensure that the
opinion evidence of the expert is properly motivated. In this regard, the Supreme
Court of Appeal in MEC for Health and Social Development, Gauteng v MM on
behalf of OM9 had the following to say with regard to opinion evidence:
“It is as well to recap the approach to be taken to expert evidence. Such testimony,
in a medical matter, amounts to an opinion on how accepted medical principles
apply to the facts. It is admissible where the person rendering the opinion is
qualified to do so. The opinion must be properly motivated so that the court can
arrive at its own view on the issue. Where the opinions of experts differ, the
underlying reasoning of the various experts must be weighed by the court so as to
choose which, if any, of the opinions to adopt and to what extent. The opinion of
an expert does not bind a court. It does no more than assist a court to itself arrive
at an informed opinion in an area where it has little or no knowledge due to the
specialised field of knowledge bear ing on the issues. In this regard, in Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH,
this Court held:

this Court held:
‘[A]n expert’s opinion represents their reasoned conclusion based on certain facts
or data, which are either common cause, or established by their own evidence or
that of some other competent witness. Except possibly where it is not controverted,
an expert ’s bald statement of their opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process of reasoning which

9 [2021] ZASCA 128.

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led to the conclusion, including the premises from which the reasoning proceeds,
are disclosed by the expert.’
With those factors in mind, the expert evidence must be evaluated.”10 (Footnotes
Omitted)
[54] Similarly, in NSS obo AS v MEC for Health, Eastern Cape Province 11 the
Supreme Court of Appeal stated the following on the same topic:
“It is settled principle that in order to evaluate expert evidence, the Court must be
appraised of and analyse the process of reasoning which led to the expert’s
conclusion, including the premises from which that reasoning proceeds. The court
must be sati sfied that the opinion is based on facts and that the expert
has reached a defensible conclusion on the matter.”12
[55] It should be noted that even in instances where there is no opposing report, as it
is the case in this matter, it remains the duty of this court to analyse the report
and be satisfied.
Reason for Order
[56] In my view, I am not satisfied with the opinion of the Industrial Psychologist that
the earning capacity of the plaintiff had been lost to a point that his patrimony is
reduced in due course.
[57] To my mind, the opinion of the Industrial Psychologist is not properly motivated
at all. I am unable to agree with the conclusion reached by the Industrial
Psychologist regarding the fact that the plaintiff should be compensated for the
ongoing cost associated with employing an assistant in the post-morbid scenario.
Further, his conclusion regarding the fact it is unlikely that the plaintiff will ever
achieve his pre-morbid potential and in the event that if he attempts to perform
aspects of his work exceed ing his post -morbid physical capabilities, it will
probably lead to increased levels of pain and discomfort as well as a general
deterioration in his condition.

10 Id at para 17.
11 2023 (6) SA 408 (SCA).
12 Id at para 25.

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[58] In my view , the se conclusions are based on information which the Industrial
Psychologist was unable to verify. In other words, some of the Industrial
Psychologist’s conclusion were based merely on information which was supplied
by the plaintiff only. The plaintiff has failed to provide any form of documentation
to prove that he was making a particular amount of earnings pre-accident. All the
past and future earnings which the plaintiff claims are based on the information
supplied by the plaintiff alone and is not corroborated by any documentation from
the plaintiff.
[59] Accordingly, it follows therefore that the actuarial calculations made by the
Actuaries cannot stand since they were arrived at using the opinion of the
Industrial Psychologist which is, in my view, not properly motivated at all.
[60] I am therefore not persuaded that the evidence supports the claim that the
plaintiff has suffered any loss of earnings or earning capacity as a result of the
injuries sustained in the collision. In my view , his injury has not affected his
functioning, the ability to do his work and his chances of progressing up the
ranks.
[61] In my judgment the injuries he sustained have not affected his earning capacity
or career progression. The plaintiff has not proven that he is entitled to any
compensation for loss of earning capacity. Consequently, the quantum claim for
loss of past and future earnings stands to be dismissed.
Costs
[62] The general rule in matters of costs is that the successful party should be given
his costs, and this rule should not be departed from except where there be good
grounds for doing so, such as misconduct on the part of the successful party or
other exceptional circumstances.
[63] The plaintiff was successful on the issues of general damages and future medical
expenses; however, he was unsuccessful on the issue relating to the claim for
loss of earnings. Considering this, it is in my view logical for the defendant to be

loss of earnings. Considering this, it is in my view logical for the defendant to be
ordered to pay the plaintiff’s costs incurred in so far as the issues of general
damages and future medical expenses is concerned.

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