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2025
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[2025] ZAFSHC 144
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Viljoen v Road Accident Fund (3312/2018) [2025] ZAFSHC 144 (22 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable/Not
reportable
Case
no: 3312/2018
In
the matter between
DENIS
JOHAN VILJOEN
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Neutral
citation:
Viljoen v RAF
(3312/2018) [2025]
Coram:
MPAMA AJ
Heard:
21-22 January 2025 – Heads of argument filed on 5 and 7
February 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
09H30
on
22 May
2025
.
Summary:
ORDER
1
The defendant is liable to pay 80% of the plaintiff’s
proven or agreed damages.
2
The defendant is ordered to pay the plaintiff for loss of earnings in
the amount to be calculated and
such calculation shall make provision
for a contingency deduction of 15 % pre-morbid income and 30% in
respect of post-morbid income.
3
The plaintiff is directed to obtain updated actuarial
calculations regarding plaintiff’s loss
of income in accordance
with the court’s relevant finding on the plaintiff’s
retirement age with the aforesaid contingency
deductions and
apportionment.
4
A copy of the updated actuarial calculations shall be served upon the
defendant
by the plaintiff.
5
The plaintiff shall submit the updated actuarial calculations
together with an updated draft order (to
be prepared by the plaintiff
and the defendant) to the Office of the Registrar in order to obtain
a further order for the payment
of the plaintiff by the defendant.
The draft order must make
provision for the payment of taxed or agreed fees by the defendant on
scale B as contemplated under R67A
of the Uniform Rules of Court,
reasonable and qualifying expenses of the expert witnesses.
JUDGMENT
MPAMA
AJ
[1]
On 16 April 2016, the plaintiff, Denis Johan Viljoen, was a
driver on the N1 South Highway when he was involved in high velocity
motor vehicle accident and sustained cervical trauma with resultant
dislocation of the cervical spine at C6/C7. Arising from the
injuries
sustained in the accident, the plaintiff commenced action proceedings
against the defendant, the Road Accident Fund, and
sued it for
general damages, loss of income and medical costs.
[2]
On 30 July 2024, this court, per Daffue J, granted an order in
terms of which the defendant was ordered to pay 80% of the
plaintiff’s
proven or agreed damages, R640 000 for general
damages and to deliver an undertaking in terms of s 17(4)
(a)
of the Road Accident Fund Act 56 of 1996 (the Act) to the plaintiff.
[3]
On 29 October 2024, by agreement between the plaintiff and
defendant, the court granted an order for an interim payment in the
amount
of R1 000 000, in terms of rule 34A of the Uniform
Rules of Court, for plaintiff’s past and future loss of income,
alternatively loss of earning capacity.
[4]
At the commencement of the proceedings, the parties informed
the court that the only issue for determination was the plaintiff’s
past and future loss of income, a point of discord being the
plaintiff’s pre-morbid retirement age and potential income post
normal retirement age.
[5]
Two expert witnesses, both industrial psychologists,
testified: Ms Madeleine Pretorius testified for the plaintiff and Mr
Johannes
Petrus Venter for the defendant. An application was brought
by the applicant in terms of rule 38(2) of the Uniform Rules of Court
for the expert evidence to be tendered by way of affidavits. The
application was not opposed and the order was granted. Pursuant
to
the order, the following affidavits were handed in: Dr Piet Olivier,
an orthopaedic surgeon; Ms Benita Krause, an occupational
therapist;
and Mr Wim Loots, an actuary. Most issues are common cause between
the plaintiff and the defendant and in order not
to overburden this
judgment I will only refer to the most salient facts of these
reports:
(a) Dr Olivier reported
that the plaintiff sustained a severe orthopaedic injury to the
cervical area, which resulted in a bifacet
dislocation at the level
between C6 and C7 and was fortunate not to sustain an injury to the
spinal cord. The plaintiff underwent
an initial stabilisation between
C6 and C7 but a revision procedure was necessary. The plaintiff will
experience a moderate degree
of daily mechanical neck pain, which
should be considered as permanent in nature. He concluded that the
plaintiff’s ability
to perform a job that entails sedentary
duties was compromised due to the necessity to alternate sitting with
standing and walking,
the plaintiff will probably be forced to retire
prematurely and most probably at the age of sixty years. It was not
expected that
the plaintiff’s degree of disability will improve
significantly with future medical or surgical intervention.
(b) Ms Krause assessed
the plaintiff on 21 January 2020. She reported that the plaintiff was
suffering from severe pain due to the
nature of the injuries
sustained during the collision, his retirement age has to be
reconsidered and the plaintiff has to be seen
by an industrial
psychologist to determine his future employability.
(c) Mr Loots prepared
loss of earnings calculations of the plaintiff. He based his
calculations on the industrial psychologists’
reports and came
up with two scenarios. The first scenario is based on Ms Pretorius’s
opinion that the plaintiff’s
retirement age will be 75 years
with his current salary level and the resultant loss of income being
R4 084 859. The second
scenario is based on Mr Venter’s
opinion with 70 years as the retirement age and substantial decrease
in salary resulting
in the amount of R1 698 159 as loss of
income.
[6]
Ms Pretorius for the plaintiff testified as follows. That at
the time of the accident, the plaintiff was 49 years old and employed
as a Business Development Manager at Sanlam Personal Portfolios in
Bellville. He still holds this position. The plaintiff
would
most likely remain with Sanlam until the retirement age of 65 years
if it was not for the accident, however, due to his injuries,
he will
take an early retirement at the age of 60 years. After the accident,
he was on sick leave for three months. During his
absence at Sanlam,
he received a basic salary and did not receive any commission pay-out
due to his absence.
[7]
Ms Pretorius referred to the actuary’s calculations and
agreed that the plaintiff’s loss of past income stood at an
amount of R89 013. She referred to a joint minute between herself and
Mr Venter. She confirmed that they agreed on the amount of
loss of
past income, that the plaintiff’s current salary was an annual
gross income of R1 923 353 and he would
have continued to
earn on this level with annual inflation increases until the age of
65 if it was not for the accident. They also
agreed that the
plaintiff would, in all probabilities, qualify as a Certified
Financial Planner (CFP), with this qualification
he would continue
working beyond the normal retirement age or run his own financial
advisory institution and earn almost the same
income as before normal
retirement age. The plaintiff intended to retire at 75 years.
[8]
Ms Pretorius further testified that she interviewed the
plaintiff’s supervisor, Mr Lotriet, who reported that the
plaintiff
would definitely qualify as a CFP as this was a common
route followed by the employees in plaintiff’s position when
they
reach 65 years and because this is a specialised skill and CFPs
earn a considerable monthly income. Moreover, she testified that
the
plaintiff had to abandon his studies towards qualifying as CFP due to
pain suffered as a result of the accident. The plaintiff
would retire
at 65 years at Sanlam and, due to his injuries, he will have to take
an early retirement, most probable at 60 years
as a result of his
injuries.
[9]
Lastly, Ms Pretorius testified that, on 28 October 2024,
herself and Mr Venter signed an addendum joint minute in terms of
which
they agreed that the only issues in dispute were whether the
plaintiff would have continued to work as a CFP from the normal
retirement
age (65 years) up to at least 75 years or not and his
potential income during this period. She said according to this
minute, she
opined that the plaintiff would earn between R800 000
and R2 000 000 per annum, whereas the defendant said
between
R266 215 and R241 327.
[10]
During cross-examination, Ms Pretorius conceded that the
chances of the plaintiff continuing to work between the age of 70 and
75
years were on a 50/50 basis and a possibility existed that the
plaintiff would retire before attaining the age of 75 years. When
asked if there were other resources consulted to arrive at this
conclusion, her response was that she could not obtain any statistics
or information to substantiate her claims, however, it was still her
opinion that, in South Africa, there is a general trend of
people in
high income groups working beyond the normal retirement age. This
concluded a case for the plaintiff.
[11]
Mr Venter for the defendant testified as follows. That he
signed a joint minute with the plaintiff’s expert, Ms Pretorius
wherein he agreed that if it was not for the accident, the plaintiff
would continue working until the age of 65 years at Sanlam,
continue
working post retirement until the age of 70 years. His further
evidence was that there was insufficient information available
regarding the percentage of people in South Africa who continue to
work after the normal retirement age and because employees in
high
income groups were not expected to do physical duties many of them
continue to work past the normal retirement age but not
beyond 70
years. On this, he concluded by saying that working beyond the normal
retirement age was dependent on a number of factors
like family
dynamics, including the composition of the family, lifestyle and
health, it was improbable that the plaintiff would
remain in good
health between the age of 70 and 75 years and it was reasonable to
expect the plaintiff to work until 70 years.
[12]
He further testified that that there were 80% chances that the
plaintiff would qualify as a CFP and it was difficult to determine
his income as he will be older, employed or self-employed with no
stable source of income. He admitted that, initially, he had
agreed
with Ms Pretorius that the plaintiff would earn almost the same
income he earned at Sanlam, however he later deviated from
this
conclusion. The reason for deviation was that he obtained some
information from Analytico and Indeed websites and this resulted
in
him concluding that the plaintiff’s salary will be reduced to
between R266 215 and R 241 327 post retirement.
During
cross-examination, he conceded that there was no credible evidence to
substantiate these amounts. This concluded a case
for the defendant.
[13]
The court must determine the plaintiff’s retirement age
post normal retirement age and his potential income during this
period.
[14]
The onus lies on the plaintiff to prove that his earning
capacity has been negatively impacted because of the injuries. Once
that
is established, then the claim may be assessed and quantified.
[15]
It is evident from the plaintiff’s expert reports that
the injuries sustained by the plaintiff had a negative impact on him.
This has not been placed in dispute by the defendant. The plaintiff
and the defendant are also in agreement that the plaintiff
will
retire earlier than normal, most probable at age 60, would have
worked at Sanlam until the standard retirement age (65 years),
qualify as CFP with Mr Venter placing his chances of qualifying at
80% and that he would work beyond the normal retirement age
if it was
not for the accident. It is also common between the parties that the
plaintiff, with his qualifications and experience,
possesses scarce
specialised skills.
[16] The plaintiff’s
contention is that he would work and earn an income until the age of
75 years either self-employed, running
his financial advisory
business or employed by another financial company. Ms Pretorius was
unable to substantiate her claim that
the plaintiff would be able to
work until 75 years when called upon to do so. She also conceded that
there was no credible evidence
to corroborate this. She reluctantly
admitted that the most definite scenario was for the plaintiff
qualifying as CFP and working
until the age of 70 years in this
field.
[17]
This court, per Chesiwe J, in the case of
Mahlo v Road Accident
Fund
[2022] ZAFSHC 194
at para 25-26, faced with almost similar
facts, expressed itself as follows:
‘
However, it is not
unreasonable to accept that she is able to work beyond the age of 65
years (sixty-five). Though there is no case
law on the retirement age
of a self-employed and unskilled labourer, there are many instances
where employees in the formal employment
are allowed to work until
the age of 70 (seventy) years and beyond such as is the case for
professionals, Attorneys and Ministers,
though the Plaintiff’s
circumstances are not comparable to some of these professionals.
It is clear from the
Plaintiff’s testimony that depending on her health, she will
work beyond the age of 65 (sixty-five).
I have my doubts that she
will be able to work until the age of 80 (eighty) years as on
observation during her testimony, she walked
with difficulty as she
approached the witness stand. The Plaintiff suffers from high blood
pressure pre-accident and is already
on the government old age grant,
which she has been receiving from the age of 60 (sixty).’
[18]
I align myself with these sentiments, it is difficult to fathom that
the plaintiff will, beyond
the age of 70 years, be able to enjoy a
normal and productive work life. It is my opinion that considering
factors like physical,
mental and psychological challenges that come
naturally with old age, it is unlikely that the plaintiff would still
function at
full capacity at the age of 70 years. Moreover, 75 years
as an ultimate retirement age was not mentioned or discussed by the
plaintiff
with any of the experts except Ms Pretorius. A reasonable
probability is that the plaintiff would be able to work beyond normal
retirement up until 70 years.
[19]
The defendant submitted that the plaintiff’s salary would be
substantially reduced post
normal retirement age. Mr Venter testified
that his initial view was that it will not but changed his position
when he conducted
a search on two websites, Analytico and Indeed and
concluded that it will be substantially reduced. Other than this
there is no
cogent evidence presented. The plaintiff and the
defendant agreed that the plaintiff possessed unique specialised
skills. I am
unable to find that the plaintiff’s income would
be substantially reduced post normal retirement age.
[20]
I am satisfied that a fair and reasonable compensation for the
plaintiff’s loss of future
income would be an amount calculated
at his current salary level up to the age of 70 years. The actuarial
calculations need to
be updated.
[21]
I will now deal with the contingency deductions. The determination of
a suitable contingency deduction falls
within the discretion of the
court. There is no dispute regarding the contingency deductions
applied on the actuarial calculations
presented by the plaintiff. The
actuary suggested a deduction of 15 % in respect of the pre-morbid
income and 30% in respect of
the post-morbid income. These deductions
are, in my view, fair and reasonable in the circumstances of the
plaintiff.
[22]
On conclusion, the general rule is that costs follow suit. I have no
reason(s) to deviate from the
general rule.
[23] In
the circumstances, I make the following order:
1
The defendant is liable to pay 80% of the plaintiff’s proven or
agreed damages.
2
The defendant is ordered to pay the plaintiff for loss of earnings in
the amount
to be calculated and such calculation shall make provision
for a contingency deduction of 15 % pre-morbid income and 30% in
respect
of post-morbid income.
3
The plaintiff is directed to obtain updated actuarial calculations
regarding plaintiff’s loss
of income in accordance with the
court’s relevant finding on the plaintiff’s retirement
age with the aforesaid contingency
deductions and apportionment.
4
A copy of the updated actuarial calculations shall be served upon the
defendant
by the plaintiff.
5
The plaintiff shall submit the updated actuarial calculations
together with an
updated draft order (to be prepared by the plaintiff
and the defendant) to the Office of the Registrar in order to obtain
a further
order for the payment of the plaintiff by the defendant.
The draft order must make
provision for the payment of taxed or agreed fees by the defendant on
scale B as contemplated under R67A
of the Uniform Rules of Court,
reasonable and qualifying expenses of the expert witnesses.
L. MPAMA AJ
Appearances
For
the plaintiff:
AS
Sieberhagen
Instructed
by:
P
Joubert Inc, Bellville
c/o
Rosendorff Reitz Barry Inc, Bloemfontein
For
the defendant:
J
Gouws
Instructed
by:
State
Attorney
, Bloemfontein.