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[2025] ZAFSHC 279
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Lintoe v RAF (688/2014) [2025] ZAFSHC 279 (4 September 2025)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not reportable
Case no: 4359/2022
In
the matter between:
LA
LINTOE
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
Neutral
citation:
Lintoe v
RAF
(4359/2022)
[2025] ZAFSHC 279
(04
September 2025)
Coram:
Ntanga AJ
Heard:
9 June 2025
Delivered:
04 September 2025
Summary:
Civil procedure – motor vehicle
accident claim – quantum of loss of earnings –
defendant
liable to compensate plaintiff for loss of earnings
.
ORDER
1.1
The plaintiff’s evidence on affidavit is
admitted in terms of rule 38(2) and
section 3
of the
Law of Evidence
Amendment Act 45 of 1988
and the Civil Procedure Evidence Act 25 of
1965.
1.2
The defendant is liable to pay 100% (one hundred
percent) of the plaintiff's proven or agreed damages;
The defendant shall pay
the plaintiff the sum of R3 562 802 in respect of past and
future loss of income capacity.
1.3
The defendant shall pay the abovementioned amount into the
plaintiff’s
attorneys trust account with the following details:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
6[…]
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
3[…]
1.4
Interest shall accrue on such outstanding amount at 11.25% (at the
mora rate,
as per the
Prescribed Rate of Interest Act 55 of
1975
, as amended) per annum calculated from the due date, as per the
Road Accident Fund Act 56 of 1996
, until the date of payment.
1.5
The defendant shall pay the plaintiff's taxed or agreed party and
party cost, up to and including the trial dates of November 19, 20
and 22, 2024, May 6 and 7, 2025 and June 9, 2025 which
costs
shall include, but not limited to, the following subject to the
Taxing Master’s discretion:
1.5.1 The fees of Counsel
in terms of amended Uniform
Rule 67A
(3)(a) read with
Rule 69(7)
on
scale B, which costs shall include but not limited to his fees of
full preparation for the trial of November 19, 2024 and June
9, 2025
and preparing Heads of Argument, and his day fees for the trial dates
as mentioned in this paragraph.
1.5.2 The
reasonable taxable reservation fees of the following experts for
November 19, 20 and 22, 2024:
(a)
Dr J P Marin – Orthopaedic Surgeon.
(b)
Dr S van Heerden – Plastic and Reconstructive Surgeon.
(c)
Dr M Kassen – Clinical Psychologist.
(d)
Ms M Olivier – Occupational Therapist.
1.5.3 The reasonable
taxable reservation and qualifying fees of the following experts for
November 19, 20, and 22, 2024:
(a)
Mr B Moodie – Industrial Psychologist.
(b)
Mr J Sauer – Actuary.
1.6
The reasonable taxable reservation fees of the following experts
for
May 6, 2025:
(a)
Dr J P Marin – Orthopaedic Surgeon.
(b)
Dr M Kassen – Clinical Psychologist.
(c)
Ms A Jansen – Occupational Therapist.
(d)
Dr I Wosu – Specialist Physician.
(e)
Dr A Naicker – Educational Psychologist.
(f)
Mr B Moodie – Industrial Psychologist.
(g)
Mr J Sauer – Actuary.
1.7
The reasonable taxable qualification fees of the following experts
for their reports and addendum reports for the trial date of May 6,
2025:
(a)
Dr M. Kassen – Clinical Psychologist.
(b)
Ms M Olivier and Ms A Jansen – Occupational Therapists.
(c)
Dr I Wosu – Specialist Physician.
(d)
Dr A Naicker – Educational Psychologist.
(e)
Mr B Moodie – Industrial Psychologist.
(f)
Mr J Sauer – Actuary.
1.8
The reasonable taxable attendance fees at the court of the following
experts for May 6, 2025:
(a)
Dr M Kassen – Clinical Psychologist.
(b)
Ms M Olivier and Ms A Jansen – Occupational Therapists.
(c)
Dr I Wosu – Specialist Physician.
(d)
Dr A Naicker – Educational Psychologist.
(e)
Mr B Moodie – Industrial Psychologist.
1.9
In the event of default on the costs payment,
i
interest shall accrue on such outstanding amount 14 days
after the date of taxation/settlement of the bill of cost, as per the
Prescribed Rate of Interest Act 55 of 1975
, as amended, per annum,
calculated from the due date until the date of payment.
JUDGMENT
Ntanga AJ
Introduction
[1]
The plaintiff instituted an action against the Road Accident
Fund (the defendant) for damages suffered as a result of injuries to
which he sustained in a motor vehicle accident which occurred on July
14, 2019 at Thabong near Welkom, Free State Province involving
a
motor vehicle with unknown registration number driven by unknown
driver, the first insured vehicle, and another motor vehicle
with registration number FFX[…], driven by HJ Lintoe, the
second insured vehicle, in which vehicle the plaintiff was a
passenger. The plaintiff avers that a collision occurred when the
first insured vehicle turned in front of the second insured vehicle.
It is averred that the second insured driver swerved to the left to
avoid colliding with the first insured vehicle, lost control
and
collided with a fence.
[2]
At commencement of trial, the parties’ legal
representatives moved for postponement of the claim relating to past
medical
expenses
sine die
, pending the finalisation of a
similar issue by the Supreme Court Appeal.
[3]
The plaintiff moved for an order in terms of
rule 38(2)
as set
out in the notice of motion. After due consideration, I granted an
order as set out in the court order dated May 7,
2025.
[4]
The court was advised that the merits have been conceded per
court order dated March 26, 2024. The defendant was ordered to pay an
amount of R500 000 for general damages. The defendant was
ordered to provide the plaintiff with an undertaking as provided
for
in s 17(4)
(a)
of the Road Accident Fund Act 56 of 1996 (the
RAF Act).
Issues for
determination
[5]
This court is called upon to determine quantum in respect of
past and future loss of earnings.
Background
[6]
In his particulars of claim, the plaintiff avers that as a
result of the collision he suffered
inter alia
the following
injuries:
(a) fracture right femur;
and
(b) pulmonary embolism.
[7]
The plaintiff further averred that, as a result of the
injuries, she suffered, inter alia, the following
sequelae
:
(a) pain and discomfort;
(b) loss of amenities of
life;
(c) she had to undergo
medical treatment; and
(d) may have a loss of
earnings/earning capacity in the future.
The plaintiff’s
case
[8]
It was submitted that
the plaintiff was attending school and her mother as a teacher
encouraged her to continue with her studies.
The accident prohibited
her from completing her studies. It was avered that the plaintiff
will have a difficulty to work and perform
duties that will require
her to walk and do a physical job. The plaintiff could have continued
working but for the accident. Her
job entailed a lot of walking and
standing.
[9]
In the plaintiff’s
affidavit admitted into court as evidence, the plaintiff avers that
she sustained the following injuries:
(a) the right femur
fracturer was treated with an intramedullary nail;
(b) chronic
musculoskeletal pain;
(c) pulmonary embolism
resulting in Pulmonary Thromboembolic Disease;
(d) mild depression;
(e) adjustment disorder;
(f) phobic anxiety
(travel anxiety);
(g) partial
post-traumatic stress disorder;
(h) mild kinesiophobia;
(i) disfigurement; and
(j) deficits in certain
cognitive functioning.
[10]
In the affidavit, the
plaintiff avers that due to the injuries she has and will in future
have sequelae of the injuries and have
and will suffer damages as
more as fully set out in the medical expert opinion referred to as
follows:
(a) have and will have
pain, discomfort, suffering and loss of life amenities; and
(b) have and will have to
undergo medical treatment.
[11]
Regarding loss of
earnings, the plaintiff’s affidavit confirmed her
qualifications and work experience as set out in the educational
psychologist’s report, as well as the industrial psychologist’s
report. She averred that her work history and career
path, both
pre-and post-morbid with income, have been dealt with fully by an
industrial psychologist who filed an expert report
setting out the
nature, extent and duration of her work history, loss of earnings in
respect of pre-and post-morbid earnings, confirmed
that she is still
unemployed since she left employment at Bafokeng Funeral Parlour as a
sales agent in January 2022. She also refered
the court to an expert
report by an occupational therapist and other served and filed expert
reports dealing with the nature, duration
extent of her sequelae and
the impact it has on her prospects of performing work in the past and
future and damages she suffered
and will suffer in future.
[12]
The
plaintiff referred to the expert reports submitted and admitted into
evidence by the court. It is trite that the court is not
bound by the
expert evidence. In
S
v M
,
[1]
the Court stated that:
‘
A court’s
approach to expert evidence has been dealt with on many occasions.
The court is not bound by expert evidence. It
is the presiding
officer’s function ultimately to make up his own mind. He must
evaluate the expertise of the witness. He
must weigh the cogency of
the witness’s evidence in the contextual matrix of the case
with which he is seized. He must gauge
the quality of the expert qua
witness; However, the wise judicial officer does not lightly reject
expert evidence on matters falling
within the purview of the expert
witness’s field’.
[13]
Dr Marin, the
orthopaedic surgeon reported that:
(a) The plaintiff
experienced acute pain in her chest, right thigh and right knee
immediately after the accident. It is reported
that the pain remained
acute for approximately six weeks and moderate for approximately six
weeks. The pain medication she received
in the hospital offered
sufficient pain releif. The plaintiff still suffers from pain in her
right thigh. She rates the pain in
her thigh as 5/10 on the pain
scale. The pain progressively increased over time. The pain in her
thigh is described as throbbing
in nature. The surgical wound healed
well with no complications, however, she was left with unsightly
scaring. The pain associated
with her chest and right knee dissipated
over time. She continues to suffer from the sequelae on her right
thigh injury. Activities
of daily living such as performing her
household chores are unbearable, due to the pain. Standing and
walking for long periods
aggravates the pain in her thigh.
(b) Regarding
radiological examination it is reported that there was no detection
of focal soft tissue abnormality. A spiral oblique
fracture at the
junction of the proximal and mid-thirds
of the femur has been previously reduced and fixated by means of an
intramedullary nail with a proximal compression hip screw and
a
distal threaded interlocking screw. There is periosteal callus
formation and solid bridging osseous union with satisfactory
alignment. There is degenerative subarticular sclerosis and marginal
osteophytosis at the right hip, the right femoral head maintaining
smooth and regular contour. The medical and lateral femorotibial
compartment joint spaces are intact. No suspicious bone lesions
are
detected.
(c) Regarding
productivity and retirement it is reported that the plaintiff was 27
years old at the time the report was compiled
and is a signle female.
She sustained an injury to her right thigh in the accident and
continues to suffer from the sequelae. The
pain in her right thigh is
aggravated when doing physical activities, such as standing and
walking for prolonged periods. The plaintiff
is a student at
university. She finds it difficult to do her household tasks. With
successful tratment, the plaintiff’s productivity
will
increase. The plaintiff will be able to work to the normal retirement
of 65 years.
[14]
Dr M. Kassen, clinical psychologist reported that:
(a) The plaintiff
consulted a psychologist post-accident as part of her recovery, and
she appears to have responded favourably to
this intervention. The
plaintiff is presently unemployed, and she is actively looking for
work and recently had an interview, also
at a funeral parlour. Prior
to the accident, the plaintiff used to jog and engage in light
exercise at the gymnasium, using her
then student discount for
membership.
(b) The plaintiff
directly experienced a traumatic event, and this involved emotional
and physical injury to self. The plaintiff
continues to experience
pain and discomfort as a result of the injuries sustained in the
accident, which impact on activities of
daily living and present an
ongoing reminder of the trauma. Results on the depression inventory
together with clinical impressions
indicate that the claimant is
experiencing mild symptoms of depression. Results on the anxiety
inventory together with clinical
impressions indicate that the
claimant is not experiencing any significant symptoms of generalised
anxiety. She however experiences
mild symptoms of phobic anxiety,
i.e., kinesiophobia.
(c) Results on the
post-traumatic stress disorder (PTSD) checklist together with
clinical impressions indicate that the plaintiff
is not experiencing
symptoms consistent with a diagnosis of a PTSD. However, the claimant
did endorse items consistent with hypervigilance.
The Plaintiff’s
total score for overall response congruence was not significantly
elevated. This suggests a response profile
consistent with those
reported by others who have genuine complaints.
(d) The clinical
psychologist concluded that the plaintiff is experiencing mild
difficulties in her adjustment to the injuries sustained
in the
instant accident and the resultant sequelae. She experiences mild
depression, mild kinesiophobia and situation specific
hypervigilance.
She did not meet the threshold for a diagnosis of PTSD, nor did she
present with significant symptoms of generalised
anxiety. The
injuries sustained by the plaintiff in the accident and sequelae have
a restrictive impact on her functioning compared
to previous levels
of functioning. Her lifestyle has been diminished by the injuries as
she experiences physical pain in her right
leg, and this restricts
her level of activity and results in discomfort.
(e) Regarding cognitive
factors, the plaintiff is reported to be functioning in the low
average to average with most scores falling
predominantly into the
low average range, consistent with her premorbid academic profile. In
the domain of verbal comprehension,
she is functioning in the low
average range. In the perceptual reasoning, scores revealed low
average to average range. She performed
within the low average range
on the Block Design and Picture Completion subtest, while her
performance on the Matrix Reasoning
subtest fell within the average
range and she showed good persistence on the latter task. The
discrepancy in these scores is not
highly significant but may suggest
possible challenges in visual attention and her ability to visually
construct designs. The latter
may also be the likely result of a
lapse in sustained attention. It is worth noting that these are
abilities that she may be capable
of developing further. In the
domain of working memory, she is functioning in the impaired range.
In the domain of processing speed,
there were some mild discrepancies
with low average scores on symbol research and average scores on the
Coding subtest and RCFT
copy completion time. This mild difference
could be due to possible distractions or fatigue.
(f) The plaintiff’s
performance revealed intact abilities in the areas of cognitive
functioning, cognitive processing of visual
stimuli. Some deficits,
ranging from mild to more significant, were noted across other areas
of cognitive functioning on the claimant’s
performance. These
include mild problems with cognitive processing speed, compromised
verbal reasoning, impairment in working memory,
poor
visuo-constructive memory
visuo-constructive
abilities, challenges in visual awareness and visual attention. She
further revealed difficulties in her mental tracking ability
as well
sustaining attention and concentration.
(g) The residual pain
stemming from the plaintiff’s right leg injury will likely
impact her future functioning at work. Further
commentary on the
physical effects of the injuries on future employment is deferred to
the relevant professional. Given timely
and effective remediation the
plaintiff does not risk further losses across functional areas.
However, she will face ongoing challenges
in terms of her
rehabilitative care following her traumatic musculoskeletal injury.
The accident resulted in a number of losses
including ongoing
physical pain, compromised emotional stability, lowered overall
enjoyment of life, and losses in occupational
prospects. Based on her
estimated level of functioning, the plaintiff is currently in a
position to manage her financial and legal
affairs with reasonable
competency.
[15]
Dr A Naicker, the educational psychologist reported that:
(a) The plaintiff emerges
from a home where education is valued. Her mother who is an educator,
placed her in an English-medium
school to improve her vocational
prospects. She benefits from social support due to access, redress
and social reforms that were
not afforded to her parents. She
attended better schools than her parents did, with policies geared
towards redress and transformation.
As a learner post-democracy, she
benefits from less rigid curricula, improved teaching quality than
the past, nutritional programmes
such as feeding schemes, welfare
support such as SASSA grant and procedures aimed to reverse former
marginalisation and address
past injustices of disadvantaged
populations that will scaffold her learning and vocational path.
(b) The plaintiff was
able to pass all grades from one to five, despite learning in English
which was not her mother-tongue. She
failed three grades after
transitioning to different schools. She is likely to have been in the
low average to average range of
intellectual functioning. The
plaintiff was able to benefit from the guidance of her mother who is
an Educator and in noting her
struggles at school, she advised Lerato
to enrol at an FET College after Grade 9 and her failure in Term 01
of Grade 10. The plaintiff
was able to obtain a Level 2 in
Hospitality with the aim of progressing to an N4. Lerato was able to
benefit from National Student
Funding Aid Scheme (NSFAS) support to
aid her studies, and she expressed that she enjoyed her course.
(c) The plaintiff’s
post-morbid scholastic profile reveals that she was unable to
continue with her studies as her NSFAS bursary
had ceased due to her
discontinuation after the accident in 2019. She remains with a level
2 and partial completion of level 3
in hospitality. The writer was
unable to obtain an academic statement as she reported that she has
outstanding fees owing to Goldfields
TVET College.
(d) The physical,
emotional and cognitive sequelae of the injuries have undermined the
plaintiff’s overall functioning. These
co-occur with each other
and have incurred a cumulative deficit on her quality of life. The
plaintiff is unlikely to advance her
vocational pathway, beyond an
NQF 2 or possibly and NQF 3, due to the
sequelae
she contends
with. The plaintiff’s functioning in the practical domain has
been constrained by her ongoing pain, as well
as the risks of
advancing vocational demands on her mental health. The practical
demands of most courses at TVET levels will take
a toll on her
reserves with pre-requisite levels of endurance and stamina. Her
struggles with attention and memory will constrain
her abilities to
increase her fund of knowledge and integrate new information learnt.
The plaintiff should receive intense rehabilitative
care to optimise
her daily functioning. Vocational counselling should be sought to
guide her.
[16]
Ms A Jansen and Ms Olivier the occupational therapists
reported that:
(a) The plaintiff’s
physical capacity has reduced regarding her tolerance for walking and
working in a forward bending position.
She was unable to participate
in weight handling tasks with the initial assessment. Her weight
handling abilities are currently
suited to light work. She continues
to suffer pain in her right upper leg. The plaintiff’s physical
capacity has reduced
with walking, forward bending and elevated work
tasks. Her physical abilities are currently suited for sedentary work
with load
handling abilities suited to light work, indicating
improvement in load handling abilities only and reduced tolerance for
physically
demanding tasks.
(b) The plaintiff
continues to present with impaired cognitive functioning, and she was
unable to complete her studies. Limitations
in posture and ambulation
tasks, such as walking, elevated, work, and forward bending have
decreased since the initial assessments.
These limitations impact on
her ability to perform work that exceeds light work. Her physical
limitations, and cognitive challenges,
affect her overall
employability. Long-term employability may also be reduced by her
vulnerabilities to cognitive errors and psycho-social
limitations.
The plaintiff’s abilities are restricted to light work,
reducing opportunities for physically demanding jobs.
(c) The plaintiff
presents additional health concerns, which will affect her
productivity in the workplace. Her functional endurance
may remain
reduced even following removal of the internal fixator given her
thromboembolic disease and hypertensive state. The
plaintiff’s
cognitive limitations will affect her overall employability. The
right leg symptoms, in combination with the
cognitive limitations and
the thromboembolic disease, will exclude her from suitable light and
medium physical demand occupations,
while her lack of Matric
qualification will render her not suited to sedentary roles. She will
be a significantly disadvantaged
job seeker and a vulnerable
employee, should she manage to secure employment in the open labour
market.
[17]
Mr Ben Moodie, the industrial psychologist reported that:
(a) The plaintiff has
remained unemployed from February 2022 to date of the report. Her
past loss of income should be calculated
against the background of
the uninjured scenario. The plaintiff’s functional capacity,
physically, cognitively, and emotionally,
would improve significantly
through treatment, enabling her to complete her studies in
Hospitality Management and follow a career
trajectory similar to what
was projected in her uninjured state. This would however require not
only the reduction of chronic pain
and physical limitations but also
marked improvement in her cognitive functioning, particularly in
working memory, attention, and
the ability to process and integrate
new information.
(b) The plaintiff is
faced with further enduring physical pain that affects her stamina
and capacity to engage in the practical
demands of her field: while
her cognitive challenges, specifically impairments in memory and
concentration, present barriers to
learning and adapting to complex,
multistep tasks. Moreover, her psychological state, marked by low
mood, situational anxiety,
and diminished confidence, further limits
her ability to cope with academic and workplace stressors. These
challenges compounded
each other, making it increasingly difficult
for her to function at the level required to complete formal studies
or maintain consistent,
sustainable employment, especially in a
labour market already strained by high unemployment and fierce
competition.
(c) Considering the
plaintiff’s current limitations, the inability to advance
academically and the likelihood of her remaining
in a vulnerable
position within the labour market, struggling to secure full-time or
long-term employment, possibly managing only
part-time or
low-wage
work, and facing prolonged periods of economic inactivity. The
passage of time will likely further erode her competitiveness as
her
peers continue to gain experience and develop professionally, while
she remains largely excluded from those opportunities.
There is also
the realistic risk that she may eventually disengage from the job
market altogether due to ongoing pain, psychological
fatigue, or
demotivation. It is important to consider that the accident occurred
in July 2019, nearly six years ago, allowing ample
time for the
long-term effects of her injuries to manifest. Furthermore, she
reported being unemployed since February 2022, and
the longer she
remains out of the workplace, the more challenging it becomes for her
to re-enter the open labour market.
[18]
Dr I Wosu, the specialist physician reported that:
(a) The plaintiff has
experienced significant physical and emotional suffering as a result
of the injuries sustained in the accident.
Her activities of daily
living have been impacted, though her global assessment daily living
score is 26/26. The plaintiff has
suffered a significant and
permanent injury in the form of pulmonary thromboembolic disease
requiring lifelong anticoagulation
treatment.
[19]
Dr van Heerden, the
plastic & reconstruction surgeon reported that:
(a) Scaring is present on
the lateral surface of the thigh. The scar on the region of the hip
joint measures approximately 8.5 cm
x 1 mm. The scar is
hyperpigmented. The scar is soft, smooth and pliable and is not
adherent to the underlying structures. The
scar is not amenable to
surgical correction. On the mid-lateral portion of the thigh, a
further surgical incision is present and
measures approximately 1 cm
x 1 cm. The colour, contour and consistency of the scar are that of
the normal surrounding skin. Surgical
correction is not indicated for
the scar. At the distal end of the femur, a scar is present and it
measures approximately 1 cm
x 1 mm. The scar is stable and is not
adherent to the underlying deeper structures. The scar does not
influence the mobility of
the knee joint. The scars are described as
permanent and surgical correction is not indicated.
(b) From a plastic
surgery perspective, no conservative or surgical treatment is
indicated. The scars are visible, permanent and
disfiguring. The
scars do not have any effect on the plaintiff’s activities of
daily living applying the criteria according
to the Guides to the
Evaluation of Permanent Impaiment 6
th
Edition. The scars
are not amenable to surgical correction and will always be visible
and permanent. The plaintiff’s loss
of productivity is
projected to be minimal. The scarring will not only have a physical
but also have a psychological effect.
[20]
Mr J Sauer, the actuary reported that:
(a) The plaintiff’s
pre-morbid retirement age is projected to the age of 65 years and the
post-morbid retirement age is projected
at 65 years. The report was
provided in two scenarios, the first one being on a post-morbid
minimum wage working half-days or 2
to 3 days per week. The
second scenario was based on a post-morbid minimum wage of full time
employment. Having regard to
the report of the Industrial
Psychologist it is acknowledged that the plaintiff was a student at
the time of the accident. Thereafter
she will be able to earn an
income, on par with the national minimum wage, but only half-days or
2 to 3 days per week of R 576
(R28.79 per hour * an assumed 4 hours
per day * an assumed 5 days per week) per week in current monetary
terms. With an annual
income of R29 942 (R576 *52) in current
monetary terms.
(b) Regarding post-morbid
minimum wage fulltime employment, the plaintiff will be able to earn
an income, on par with the national
minimum wage, of R1 152
(R28.79 per hour * an assumed 8 hours per day * an assumed 5 days per
week) per week in current monetary
terms. Thus an annual income of
R59 883 (R1 153 * 52) in current monetary terms.
(c) The actuaries
illustrated a higher future post-morbid contingency deduction to
allow for increased employment vulnerability,
labour incapacity,
uncertainty, possible long periods of unemployment and early
retirement.
The defendant’s
case
[21]
The defendant argued
that an amount of R874 943 constitutes a fair and reasonable
amount to be awarded in respect of the plaintiff’s
claim for
loss of earnings and/or earning capacity. There was no argument
submitted to substantiate this submission by the defendant.
The
defendant’s counsel submitted that she had no instructions as
to how the amount was arrived at by the defendant. This
submission is
not assisting the court as no explanation was provided on the basis
upon which the defendant arrived at this amount.
No further further
evidence was led by the defendant to dispute the plaintiff’s
evidence which include expert reports that
were admitted in Court as
evidence.
Legal framework and
evaluation of evidence
[22]
The Road Accident Fund has a statutory duty, in terms of the
RAF Act, to compensate a person who suffered injury caused by the
negligent
driving of the driver, owner or employee of a motor
vehicle.
[23]
The
court has a discretion to determine contingencies applicable after
having considered relevant factors and circumstances of the
plaintiff. Compensation for future loss of earnings is assessed based
on percentage of the value of the loss.
[2]
The purpose of this compensation regime is to consider what the
claimant would have earned before sustaining injuries and what
the
injured person will earn after sustaining injuries. The past loss of
earnings represent what the injured person lost from accident
to date
of finalisation of the matter. Actuaries make calculations to assist
the court in determining the monetary value of what
should be awarded
for loss of earnings or earning capacity.
[3]
In
Southern
Insurance Associaion v Bailey NO
(
Southern
Insurance Association
),
[4]
the court stated that:
‘
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is “tied down by inexorable actuarial
calculations”. He has “a large discretion to award what
he considers right” . . . One of the elements in exercising
that discretion is the making of a discount for “contingencies”
or the “vicissities of life”. These include
such matters
as the possibility that the plaintiff may in the result have less
than “normal” expectation of life: and
that he may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general
economic
conditions. The amount of any discount may vary, depending upon
circumstances . . . The rate of the discount cannot
of course
be assessed on any logical basis: the assessment must be largely
arbitrary and must depend upon the trial Judge’s
impression of
the case.’
[24]
Robert Koch provides
the following guidelines regarding contingencies:
‘
Sliding
scale: 0.5 % per year to retirement age, 25% for a child, 20% for
youth, 10% for middle aged. Normal contingencies are usually
deducted
at 5% for past loss and 15% for future loss and this depends on the
facts of the case.’
[25]
In
De
Jongh v Gunther and Another
,
[5]
the court stated that:
‘
In
a case where a plaintiff sues for his own future loss of earnings, it
is only contingencies which affect him personally which
have to be
considered. In his judgment in
Van
Rensburg v President Versekerringsmaatskappy
(W.L.D.
21.11.68 quoted in Cobertt and Buchanan,
The
Quantum
of
Damages
,
vol II, p. 62 at p.65), Ludorf, J., referred to the fact that it has
become almost customary, at any rate in this Division of
the Supreme
Court, for the Court to make the deduction, for unforseen
circumstances of life, of one-fifth. That is, it is true,
a rough and
ready approach, but the nature of the problem is such that one can do
no better than adopt a rule of thumb of this
kind.’
[26]
In
De
Jongh v Dupisane
,
[6]
the plaintiff was 35 years old male engineering assistand at
the time of colission. The Court confirmed 10% contingency deduction
applied by the trial court. The plaintiff argued that the practice
appears to be to apply contingency deductions of 5% to accrued
loss
and 15% to prospective loss.
[27]
In
Mohapi
v Road Accident Fund,
[7]
the
court followed
Zarrabi
v RAF
,
[8]
where the court applied 15% contingency for future loss of
earnings in respect of a 30 year old female claimant who sustained
severe injuries.
[28]
The
plaintiff referred to the decision of
Raupert
v Road Accident Fund
,
[9]
where the court found that a deduction of 20% contingencies would be
appropriate. This was in respect of a 20-year-old female photography
student. The plaintiff’s counsel referred to various judgments
where 15% contingency was applied by the court.
[29]
The
defendant did not call experts to give evidence on its behalf. There
is no evidence before this court to rebut the evidence
of the experts
called by the plaintiff. I am mindful of the trite principle that the
court is not bound by the expert evidence.
In applying the decision
of
S
v M
,
I have no reason to reject the evidence of experts called by the
plaintiff. I find the evidence of the experts called by the plaintiff
to be conclusive in proving the issues raised before this court.
[10]
The plaintiff’s evidence including her experts is probable and
I find that she has proved her case on a balance of probabilities.
The plaintiff therefore should succed to be granted judgment in her
favour.
[30]
The plaintiff was 25
years old when the accident ocurred and is currently 31 years old.
The plaintiff suffered injuries in a motor
vehicle collision and
these injuries have diminished the quality of her life. The evidence
aduced before this court demonstrate
that she is in continous pain as
result of the accident. The evidence indicates
the
plaintiff’s current limitations, the inability to advance
academically and the likelihood of her remaining in a vulnerable
position within the labour market, struggling to secure full-time or
long-term employment, possibly managing only part-time or
low-wage
work, and facing prolonged periods of economic inactivity.
Furthermore, evidence points to a risk that she may eventually
disengage from the job market altogether due to ongoing pain,
psychological fatigue, or demotivation.
There
is merit for the plaintiff to be compensated for future loss of
earnings. A fair and reasonable compensation for the plaintiff
must
be determined by this court.
[31]
The case law that I
considered has provided guidence in determining a fair and reasonable
compensation to the plaintiff. I have
taken into consideration
variation of injuries in cases considered. I have considered expert
reports which detail the impact of
the accident and injuries
sustained by the plaintiff. Having considered the injuries sustained
by plaintiff and comparative case
law, I am of the view that a
deduction of 15% for the contingencies would be appropriate.
The
calculations should be as follows:
(a) Pre-morbid earnings
(had the accident not occurred)
Past loss of earnings
R287 230
Less 5% contingency
R14 362
Total pre-morbid earnings
R272 868
(b) Pre-morbid earnings
(having regard to the accident
Future loss of earnings
R4 340 207
Less 15% contingency
earnings R651 031
Total pre-morbid earnings
R3 689 176
Less post-morbid
contingency future earnings R399 242
Net loss: R3 562 802
Costs
[32]
Concerning the costs
of this matter, I see no reason that costs should not follow the
results. The Defendant should therefore pay
the plaintiff’s
costs.
Order
[33]
In the circumstances, I make
the following order:
1.1
The plaintiff’s evidence on affidavit is
admitted in terms of rule 38(2) and
section 3
of the
Law of Evidence
Amendment Act 45 of 1988
and the Civil Procedure Evidence Act 25 of
1965.
1.2
The defendant is liable to pay 100% (one hundred
percent) of the plaintiff's proven or agreed damages;
The defendant shall pay
the plaintiff the sum of R3 562 802 in respect of past and
future loss of income capacity.
1.3
The defendant shall pay the abovementioned amount into the
plaintiff’s
attorneys trust account with the following details:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
6[…]
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
3[…]
1.4
Interest shall accrue on such outstanding amount at 11.25% (at the
mora rate,
as per the
Prescribed Rate of Interest Act 55 of
1975
, as amended) per annum calculated from the due date, as per the
Road Accident Fund Act 56 of 1996
, until the date of payment.
1.5
The defendant shall pay the plaintiff's taxed or agreed party and
party cost, up to and including the trial dates of November 19, 20
and 22, 2024, May 6 and 7, 2025 and June 9, 2025 which costs
shall
include, but not limited to, the following subject to the Taxing
Master’s discretion:
1.5.1 The fees of Counsel
in terms of amended Uniform
Rule 67A
(3)(a) read with
Rule 69(7)
on
scale B, which costs shall include but not limited to his fees of
full preparation for the trial of November 19, 2024 and June
9, 2025
and preparing heads of argument, and his day fees for the trial dates
as mentioned in this paragraph.
1.5.2 The
reasonable taxable reservation fees of the following experts for
November 19, 20 and 22, 2024:
(a)
Dr J P Marin – Orthopaedic Surgeon.
(b)
Dr S van Heerden – Plastic and Reconstructive Surgeon.
(c)
Dr M Kassen – Clinical Psychologist.
(d)
Ms M Olivier – Occupational Therapist.
1.5.3 The reasonable
taxable reservation and qualifying fees of the following experts for
November 19, 20, and 22, 2024:
(a)
Mr B Moodie – Industrial Psychologist.
(b)
Mr J Sauer – Actuary.
1.6
The reasonable taxable reservation fees of the following experts
for
May 6, 2025:
(a)
Dr J P Marin – Orthopaedic Surgeon.
(b)
Dr M. Kassen – Clinical Psychologist.
(c)
Ms A Jansen – Occupational Therapist.
(d)
Dr I Wosu – Specialist Physician.
(e)
Dr A Naicker – Educational Psychologist.
(f)
Mr B Moodie – Industrial Psychologist.
(g)
Mr J Sauer – Actuary.
1.7
The reasonable taxable qualification fees of the following experts
for their reports and addendum reports for the trial date of May 6,
2025:
(a)
Dr M Kassen – Clinical Psychologist.
(b)
Ms M Olivier and Ms A Jansen – Occupational Therapists.
(c)
Dr I Wosu – Specialist Physician.
(d)
Dr A Naicker – Educational Psychologist.
(e)
Mr B Moodie – Industrial Psychologist.
(f)
Mr J Sauer – Actuary.
1.8
The reasonable taxable attendance fees at the court of the following
experts for May 6, 2025:
(a)
Dr M Kassen – Clinical Psychologist.
(b)
Ms M Olivier and Ms A Jansen – Occupational Therapists.
(c)
Dr I Wosu – Specialist Physician.
(d)
Dr A Naicker – Educational Psychologist.
(e)
Mr B Moodie – Industrial Psychologist.
1.9
In the event of default on the costs payment,
i
interest shall accrue on such outstanding amount 14 days
after the date of taxation/settlement of the bill of cost, as per the
Prescribed Rate of Interest Act 55 of 1975
, as amended, per annum,
calculated from the due date until the date of payment.
M NTANGA
ACTING JUDGE OF THE
HIGH COURT,
FREE
STATE DIVISION
Appearances
For
the plaintiff:
D
Marx
Instructed
by:
VZLR
Inc, Pretoria
c/o
Du Plooy Attorneys, Bloemfontein
For
the defendant:
J
Gouws
Instructed
by:
State
Attorney, Bloemfontein.
[1]
S
v M
[1991]
3 All SA 510
(T)
;
1991
(1) SACR 91
(T) at 99I-100A; see also
NSS
(obo AS) v MEC for Health, Eastern Cape Province
[2023] ZASCA 41
;
2023
(6) SA 408
(SCA) para 24.
[2]
RJ Koch
Damages
for Lost Income
(1984)
at 31.
[3]
Ubisi
v Road Accident Fund
[2023]
ZAMPMBHC 33 para 57.
[4]
Southern
Insurance Associaion v Bailey NO
1984
(1) SA 98
(A) at 116G-117; see also
Van
Der Plaats v South African Mutual Fire & General Insurance
Company Limited
1980
(3) SA 105 (A).
[5]
De
Jongh v Gunther and Another
1975
(4) SA 78
(W) at 80F-H.
[6]
De
Jongh v Dupisane
[2004]
ZASCA 43; [2004] 2 All SA 565 (SCA); 2005 (5) SA 457 (SCA).
[7]
Mohapi
v Road Accident Fund
[2020]
ZAGPJHC 40.
[8]
Zarrabi
v RAF
2006
(5B4) QOD 231 (T).
[9]
Raupert
v Road Accident Fund
[2011]
JOL 26911 (ECP).
[10]
Prince
v Road Accident Fund
[2018]
ZAECGHC 20.