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Introduction
[1] This is a personal injury claim for specific damages for the
plaintiff’s future loss of earnings / loss of earning capacity
(collectively hereinafter referred to as ‘loss of income’).
[2] The plaintiff was a minor pedestrian when she was injured in
a motor vehicle collision with the registered driver on 9
January 200 5 at approximately at 13h00 in Tswelopele,
Midrand, Gauteng. The registered driver is a ML Kgala and
the registration particulars are XPV 742 GP. The plaintiff
was a pedestrian at the time of the collision.
[3] Of importance is that the plaintiff was 3½ years old when the
collision occurred. She is currently 19 years old.
[4] In 2015 general damages were awarded by the defendant
(RAF) to the plaintiff in the amount of R850 ,000.00. The
value of the general damages is equated to R1,300,000.00 in
2024.
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[5] An undertaking to pay future medical expenses of the plaintiff
has been given by RAF, and a trust has already been
created in protection of the monetary amount received by the
plaintiff.
[6] The defendant conceded 100% liability in favour of the
plaintiff’s injuries. I will be derelict in my duties if I do not
obiter dictum raise my concern around this concession. I
would expect that a 3 year old baby would be kept away from
roads where she may be injured, by an adult in whose care
the baby is. Be that as it may, the facts on the merits are not
at my disposal. I am bound by the concession of the
defendant of 100% negligence.
[7] The only issue before t his Court is the plaintiff’s loss of
income.
Material factual background
[8] The plaintiff is a female child born on 22 July 2005 and the
collision in which the plaintiff was injured, occurred on 9
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January 2009.
[9] During the trial, the plaintiff was represented by Adv
Buthelezi and the defendant was represented by Adv
Makatini.
[10] The plaintiff is the only party that filed expert reports in
support of the damages suffered by the plaintiff.
[11] The plaintiff sustained cerebral and neurological damage as
a result of the collision, as well as a fractured femur for which
she was hospitalised for a month.
Plaintiff’s case
[12] The plaintiff applied, and this Court so ordered, that the
expert evidence reports will be accepted supported by
affidavits of the experts. The expert evidence was
consequently accepted on affidavits in terms of Rule 38(2) of
the Uniform Rules of the High Court.
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[13] At the onset of the trial, t he parties were informed by this
Court that the court will not thrall through the affidavits to
establish the parties’ case. The parties were informed that
the oral arguments and arguments in their respective heads
of argument, as presented by the parties , would be the total
of the expert evidence that the court will consider in coming
to its conclusion.
The expert reports
[14] The first expert statement and report were that of the
neurosurgeon. The neurological damages of the plaintiff is
not in dispute . The plaintiff sustained cerebral edema. The
neurosurgeon classified the injury as a “ severe traumatic
injury” which results in remaining headaches and memory
problems for the plaintiff.
[15] The next expert report placed before this Court was that of
the clinical phycologist. The clinical psychologist
confirmed her observation of severe neurosurgical damages
of the plaintiff . The areas affected by the collision, is the
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plaintiff’s concentration, mental speed and v erbal non -
communication. The clinical psychologist identified signs
that would support a diagnosis of PTSD suffered by the
plaintiff.
[16] The plaintiff then referred to the report of the occupational
therapist, who stated the negative impact of the collision on
the plaintiff to be able to manage her life and her career
choices. It was evident that the plaintiff had a s low process
speed, and as soon as she entered the employment market,
she would have difficulties retaining jobs.
[17] The educational therapist stated that the plaintiff’s f ather is
formally educated to Grade 11 and there is no evidence of
the mother’s education. The plaintiff has an e lder sister who
is currently 24 years old and has a Bachelors Degree in
Education. The plaintiff’s sister is currently working as
teacher. On the basis that the plaintiff’s sister is educated
and possesses a Bachelors Degree, it is argued on behalf of
the plaintiff that the plaintiff herself would have been
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educated, had it not been for the collision, to have a
Bachelors or Honours Degree.
[18] The collision having occurred, the plaintiff failed matric last
year and passed grade 1 0 on condonation. She is c urrently
enrolled in a course that is equivalent to Grade 1 1. It is
argued on behalf of the plaintiff that the plaintiff would
probably achieve Grade 11 as her highest academic
qualification.
[19] The Industrial psychologist on behalf of the plaintiff stated
that the plaintiff’s intellectual average indicates that the
plaintiff functions on a low and below average intellectual
score. The industrial psychologist avers that the plaintiff
would probably have, had it not been for the collision,
entered the labour market after obtaining an Honours
Degree. The industrial psychologist speculates that the
plaintiff would have probably worked as a casual worker at
shops while she was trying to find permanent employment.
Within 2 – 3 years she would probably have reached
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Patterson C level, which is managerial capacity.
[20] The actuary on behalf of the plaintiff stated that, had it not
been for the collision, the plaintiff would have entered the
labour market at approximately 23 years old would , from
which age the plaintiff would receive inflationary rate
increases in her income. The following information derived
from the actuarial report is significant:
20.1. The actuary applied a 20% contingency p re-morbid on
the basis that the plaintiff was a toddler when the
morbidity (collision) occurred.
20.2. The actuary further applied a 25% post -morbidity
contingency.
20.3. More than 40% of the amount is devalued due to the cap
placed on the calculations by the RAF.
[21] The plaintiff’s actuary substantiated the calculations as
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follows:
“Ms Talmud is of the opinion that , but for the accident,
Ms Minisi would have completed Grade 12 in 2023.
Thereafter, she would have completed an Honour's
Degree within 4 years. With this qualification, she
would have initially functioned in
temporary/contract/freelance employment, ca rrying on
par with the Paterson BI lower quartile basic salary.
After 2 to 3 years, she would have secured
employment earning in line with the Paterson Cl lower
quartile basic salary, Thereafter, she would have
progressed to a career ceiling by the age of 45, earning
on par with the Paterson D4 median package. Annual
inflationary increases would have b een applicable
thereafter until retirement at age 63.
…
Having regard to the accident, Ms Talmud concluded
that Ms Mnisi will enter the labour market between the
ages of 23 and 25, earning R23 ,301.00 per annum in
January 2025 mone tary terms. Annual inflationary
increases will be applicable thereafter , until retirement
at the age of 65. In addition to the above, M s Talmud
recommended that an applicable pre -morbid
contingency deduction and an appropriately higher
past-morbid contingency should be applied to account
for the factors as set out and discussed in her report.”
[22] The following is an extract from the auditor’s report:
“6. SUMMARY OF LOSS OF INCOME
On the assumptions set out above Ms Mnisi's loss of
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income is therefore:
Future Loss
Value of Income but for accident: R14,976,252
20% Contingency Deduction R 2,995,250
R11,981,002
Value of Income having regard to accident R 526,372
25% Contingency Deduction R 131,393
R 394,779
NET FUTURE LOSS: R11,586,223
This claim is however affected by the Road Accident
Fund Amendment Act 19 of 2005. The annual loss at
the time of the accident amounted to R 166 667 per
annum. This limit was accounted for throughout the
calculations. Due to the limitation of the losses, the loss
of income reduces to the following:
NET FUTURE LOSS: R 6,818,443
The interpretation of the Road Accident Fund
Amendment Act 19 of 2005 is based on the opinion
delivered by the Honourable Judge C.H. Lewis. See
RAF v Sweatmon (162/2014) [2015] ZASCA 22 (20
March 2015). The judgment interprets Section
17(4A)(b) as follows: "The effect of the amendment to
the Road Accident Fund Act 56 of 1996 in 2008 in so
far as the limitation on the liability of the Road Accident
Fund for loss of income or support, suffered as a result
of a motor vehicle collision, is concerned: the correct
approach is to determine the present value of the
actual loss suffered, as actuarially calculated, taking
into account all contingencies, including mortality, and
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then compare it with the annual loss (the limit or cap)
as determined on the date of the accident. The annual
loss is th at determined by notice in the Government
Gazette. And the quantum of the annual loss, provides
s 17(4A)(3), is that 'set out in the last notice issued
prior to the date on which the cause of action arose' -
that is, the date of the accident.
An adjustment to allow for interest between the date of
calculation and the date of settlement should be
made."
[23] It is argued on behalf of the plaintiff that the contingency
deductions calculated above should not be increased , but
accepted as the maximum deductions.
Defendant’s case
[24] It is argued on behalf of the defendant that there is no
indication, alternatively that there is not sufficient evidence,
that the plaintiff would have studied further than matric.
[25] The defendant argues that, in this instance and due to the
age of the plaintiff when the morbidity occurred, the pre -
morbid and post-morbid amounts would be the same.
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[26] The defendant argues further that the plaintiff is still studying
at college for Grade 10 to 12 and would probably be able to
pass Grade 12 . After passing Grade 12, so the argument
goes, the plaintiff would probably be able to function in an
employment position.
[27] The defendant proposes a contingency d eduction of 43%
which would bring the claim amount down to R4,193,000.00.
[28] The defendant argues that the plaintiff ha s a normal life
expectancy and is expected to work until the normal
retirement age of 65.
Analysis
[29] The defendant is liable to the plaintiff for compensation of
loss of earning capacity or future loss of income (loss of
income), in terms of section 17(4)(b) and (c) of the Road
Accident Fund Act 56 of 1996, as amended. The claim for
future loss of income is limited by section 17(4A) of the RAF
Act. This is commonly referred to as “the cap” placed on a
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claim for loss of future income.
[30] The relevant parts of section 17 of the Road Accident Fund
Act read as follows:
“17 Liability of Fund and agents
(1) The Fund or an agent shall —
. . .
be obliged to compensate any person (the third
party) for any loss or damage which the third party has
suffered as a result of any bodily injury to himself or
herself or the death of or any bodily injury to any other
person, caused by or arising from the driving of a motor
vehicle by any person at any place within the Republic,
if the injury or death is due to the negligence or other
wrongful act of the driver . . . .
. . .
(4) Where a claim for compensation under
subsection (1) —
. . .
(b) includes a claim for future loss of income or
support, the amount payable by the Fund or the
agent shall be paid by way of a lump sum or in
instalments as agreed upon;
(c) includes a claim for loss of income or
support, the annual loss, irrespective of
the actual loss, shall be proportionately
calculated to an amount not exceeding —
(i) [Rx] per year in the case of a claim for loss
of income; and
(ii) [Rx] per year, in respect of each deceased
breadwinner, in the case of a claim for loss of
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support.' [My emphasis.]
[31] In terms of s ection 17(4A)(a) the amounts referred to in
section 17(4)(c)(i) and (ii) are determined by notice in
the Government Gazette and adjusted quarterly to counter
the effect of inflation. Section 17(4A)(b) provides that:
'In respect of any claim for loss of income or support
the amounts adjusted in terms of paragraph (a) shall
be the amounts set out in the last notice issued prior to
the date on which the cause of action arose.”
[32] The effect and application of “the cap” have been dealt with
in Road Accident Fund v Sweatman 2015 (6) SA 186
(SCA). In paragraph the Supreme Court of Appeal found
that:
[6] This issue has been determined in different ways by
various courts, and I shall deal with these decisions in
due course. Mr Morris, who gave evidence for Ms
Sweatman, explained the conventional method
of determining future losses when establishing a claim
for loss of income or support. The matter is not without
difficulty, especially where one is dealing with an injury
to a young person or the death of a young
breadwinner. Nicholas JA put the problem as follows
in Southern Insurance Association Ltd v Bailey
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NO 1984 (1) SA 98 (A) at 113F – 114A:
'Any enquiry into damages for loss of earning
capacity is of its nature speculative, because it
involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs 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 the loss.
It has open to it two possible approaches.
One is for the Judge to make a round estimate of an
amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork,
a blind plunge into the unknown.
The other is to try to make an assessment, by
way of mathematical calculations, on the basis of
assumptions resting on the evidence. The validity of
this approach depends of course upon the
soundness of the assumptions, and these may vary
from the strongly probable to the speculative.
It is manifest that either approach involves
guesswork to a greater or lesser extent. But the
Court cannot for this reason adopt a non
possumus attitude and make no award…'
[33] In casu, I repeat that the plaintiff was 3½ years old when the
collision occurred, and she currently is 19 years of age. Any,
and all calculations of what the future would hold for the
plaintiff, had the collision not occurred, is by the very nature
thereof, highly speculative.
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[34] The plaintiff submits that the defendant is liable to the plaintiff
in the amount of R 6,818,443. This is the maximum amount
after the limitation in the cap of future earnings have been
applied.
[35] The defendant applies a contingency deduction of 43%
which brings the amount down to R4,193,000.
[36] I have regard to the following in determining an appropriate
amount as compensation for loss of income:
36.1. Neither the plaintiff’s father nor mother ha ve any formal
education.
36.2. The plaintiff’s 24 year old sister has obtained a
Bachelors Degree in Education.
36.3. The plaintiff’s sister is currently working as a teacher.
36.4. The educational therapist postulates that the plaintiff
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would have, had the collision not occurred, ob tained a
Degree and be employed.
36.5. According to Ms. Linah Mnisi, the plaintiff’s biological
mother, the plaintiff presents with mood disturbances
characterized by irritability, frequent outbursts of anger,
and social withdrawal.
36.6. The brain functioning and psychological functioning of
the plaintiff leads to a conclusion that the plaintiff will
probably not be able to obtain and maintain employment
other than basic manual work.
[37] In relation to the contingencies applied, the pre - and post -
morbid scenario’s are extremely difficult to apply as the
plaintiff was a mere 3½ years of age when the collision
occurred. To my mind, the age of the plaintiff at the time of
the collision , in itself, warrants the application of a much
higher contingency than that of the plaintiff’s proposed 20%
and 25%.
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[38] Further, the young age of the plaintiff when the collision
occurred, renders it impossible to determine with certainty
that the characteristics displayed by the plaintiff ( mood
disturbances, irritability, frequent outbursts of anger, and
social withdrawal ) came about as a direct result of the
collision. It takes no stretch of the imagination to postulate
that these characteristics may have been present as part of
the plaintiff’s personality, had the collision not occurred. This
also supports the application of a high contingency.
[39] In determination of the reasonable and fair amount for
compensation, I am going to use a combination of the two
approaches followed by Nicholas JA in Southern Insurance
Association Ltd v Bailey NO 1984 (1) SA 98 (A) . As
quoted above, these approaches are:
39.1. To make a round estimate of an amount which seems to
be fair and reasonable , which is entirely a matter of
guesswork and a blind plunge into the unknown; and
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39.2. To try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the
evidence. The assumptions may vary from the strongly
probable to the speculative.
[40] My approach is to use the application of the 43%
contingency of the defendant and apply a higher contingency
due to the fact that the assumptions on which the calculation
rests, are highly speculative.
[41] In these circumstances where assumptions are highly
speculative, I regard it as reasonable and fair to make a
round estimate of an amount which seems to be a fair
amount to compensate the plaintiff for future loss of income.
[42] The defendant submits that an amount of R4,193,000 would
be a reasonable and fair amount of future loss of income for
the plaintiff. It is trite law that the plaintiff is not bound to the
amounts submitted by the parties. The amounts submitted
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by the parties are to serve as guidelines, where the court has
to apply its mind judicially to the facts presented to it.
[43] Having regard to the age of the plaintiff when the collision
occurred and the low grade of the academic education of
most of the plaintiffs family members, I hold the view that an
amount of R4,193,000 would be too high.
[44] Based on the above, I hold the view that t he plaintiff has
made out a case that she is entitled for compensation in the
loss of income, in the amount of R3,8000,000.
Cost
[45] The established legal principle in relation to costs is that the
successful party is entitled to be compensated for the costs
incurred in the action.
[46] I find no reason to deviate from this established principle.
[47] The defendant is to pay the costs of the plaintiff.
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Order
[48] In the premise, I grant the following order:
(i) The defendant shall make payment to the plaintiff in the
amount of R3,800,000.00 ( Three Million Eight
Hundred Thousand Rand) in respect of loss of
earnings, within a period of 180 days of this order.
(ii) Payment of the amount referred to hereinbefore shall
be made into the trust account of the plaintiff’s
attorneys, details as follows:-
Zwelakhe Mgudlandlu Attorneys FNB Trust
Cheque Account Acc no: 62112331971
Our ref: ZM/MVA/11647
(iii) The plaintiff’s attorneys shall transfer the said amount
to ABSA trust account that has already been created
for the benefit of Ms Mnisi once the agreed fees and
disbursement have been debated by the attorneys.
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(iv) The defendant is ordered to pay the plaintiff’s taxed or
agreed party and party costs on the High Court scale,
subject to the Taxing Master’s discretion, such costs to
include:-
a. the reasonable costs of obtaining the medico -legal
reports, as well as any addendum medico -legal
reports of all the expert witnesses of the plaintiff
relating to the issue of quantum, of whom due notice
was given in terms of Rule 36(9)(a) and
b. the reasonable qualifying and reservation fees, if
any, of all the expert witnesses of whom notice had
been given by the Plaintiff in terms of Rule 36(9)(a)
and
c. the reasonable costs pertaining to consultations of
the legal representatives with the Plaintiff and the
aforementioned experts.
(v) The costs of counsel recoverable at scale B for 22,
23,24 and 25 April 2025.
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(vi) The party and party costs referred to hereinbefore, as
taxed or agreed, shall be paid by the defendant directly
into the Trust account of the plaintiff’s attorneys of
record for the benefit of the minor child. After deduction
of the legal costs, disbursements and the consultant’s
fee for drawing the bill and attending to its settlement or
taxation, the balance shall be paid into the Trust unless
same has not yet been created, in which event, such
balance shall be invested in terms of Section 86(4) of
the Legal Practice Act 28 of 2014.
(vii) The plaintiff shall cause a notice of taxation to be
served on the defendant’s attorneys of record and the
defendant shall make payment of the taxed costs within
30 (thirty) days from of service of the bill of costs.
(viii) It is recorded that:-
a. the plaintiff has concluded and signed a written
Contingency Fee Agreement whereby the plaintiff at
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Date of argument: 25 April 2025
Date of Judgment: 26 August 2025
APPEARANCES:
For the plaintiff: Adv. Z. Buthelezi
For the defendant: Ms P. Makhathini