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
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: 977/2020
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
A[...] S[...] B[...] 1st Plaintiff
B[...] B[...] 2nd Plaintiff
and
ROAD ACCIDENT FUND Defendant
Neutral citation: B[...] and Another v The Road Accident Fund (Case no
977/2020) (11 September 2025).
Coram: Tyuthuza AJ
Heard: 28 January 2025
Delivered: 11 September 2025.
Summary: Delict – Claim for damages against Road Accident Fund – Past
hospital and medical expenses – Settled by third party – Does not necessarily
absolve the Road Accident Fund from liability – Loss of future income/ earning
capacity – Contingencies to be applied.
ORDER
1. As set out in paragraph [30] of this judgment.
JUDGMENT
Tyuthuza AJ
INTRODUCTION
[1] The plaintiffs instituted an action against the defendant, the Road Accident
Fund, claiming general damages; past and future hospital and medical
expenses; and loss of future income/ earning capacity arising from the
injuries the second plaintiff sustained as a result of a motor vehicle
collision that took place on 27 July 2018.
[2] The plaintiffs claim R1 000 000 (one million rand) for the second plaintiff’s
general damages, R 452 236.85 (four hundred and fifty -two thousand two
hundred and thirty -six rand and eighty -five cents) for past medical and
hospital expenses, and R 1 210 830.00 (one million two hundred and ten
thousand eight hundred and thirty rand) for loss of future income/ earning
capacity.
[3] The issue of liability and quantum in relation to general damages was
settled in that the defendant agreed to pay an amount of R1 000 000.00
(one million rand) in respect of the general damages suffered by the
second plaintiff. The defendant also gave the plaintiffs an undertaking in
accordance with section 17(4)( a) of the Road Accident Fund Act 1 to
compensate the plaintiffs for 100% of the costs associated with the
second plaintiff’s future hospitalisation or accommodation in a nursing
home, treatment, and services or goods occasioned by the mentioned
motor vehicle accident.
[4] Similarly, the defendant conceded liability for future loss of income/
earning capacity but disputed the quantum thereof . In relation to past
hospital and medical expenses, however, the defendant denied liability.
Accordingly, the only issues for determination were the defendant’s liability
in respect of the plaintiffs’ claim for past medical and hospital expenses
and the quantum for the second plaintiff’s future loss of income / earning
capacity and the contingency deduction applicable thereto.
[5] The plaintiffs filed expert report s of the occupational therapist, industrial
psychologist, neurosurgeon, clinical and neuropsychologist, psychiatrist,
orthopaedic surgeon, educational psychologist and the actuary. The
defendant did not object to the expertise and findings of any of these
experts. The reports of these experts were admitted into evidence.
[6] The defendant did not appoint any experts or lead evidence.
BACKGROUND
[7] On 27 July 2018 , at approximately 23 H45, at or near the N14 between
Upington and Keimoes, Northern Cape, a collision occurred between two
motor vehicles. One motor vehicle bearing registration number C[...] was
driven by Mrs V Nel (“the first insured driver”) and the other motor vehicle
bearing registration number C[...] was driven by Mr MP van Rooyen (“the
1 56 of 1996.
second insured driver”). At the time of the collision , the second plaintiff
was 15 years old and a passenger in the motor vehicle driven by the first
insured driver.
[8] The plaintiffs aver that the collision was caused by the sole negligence of
the insured drivers, resulting in the second plaintiff sustaining severe
bodily injuries. The plaintiffs further aver that as a result of the bodily
injuries sustained by the second plaintiff, the first plaintiff incurred hospital
and medical and related costs in the amount of R425 236.85. The plaintiffs
further averred that the bodily injuries sustained by the second plaintiff
consisted of diffuse traumatic brain injury ; pelvic injury with a fracture of
the right sacrum involving the right sacroiliac ( SI) joint with a fractured
pubic rami and displacement of the right hemi pelvis ; left wrist injury
involving a fracture of the radial styloid ; lumber spine injury involving a
fracture of the L5 transverse process ; and cervical spine injury involving a
fracture of the C7 transverse process.
[9] The plaintiffs led the following expert evidence:
9.1. Dr Vlok, an orthopaedic surgeon who assessed the second plaintiff
on 25 September 2019 and again on 25 September 2024 , reported
that the second plaintiff sustained a severe pelvic injury that
included a fracture of the right sacrum involving the right SI joint
and with fractures of the pubic rami and displacement of the right
hemi pelvis. He report ed that the injury was managed
conservatively and that she has made a reasonable recovery from
it, but still has residual complaints relating to the pelvic injury.
Further that, as a re sult of the injuries, the second plaintiff had an
11mm shortening of the right leg and walks with a limp. The second
plaintiff reported ongoing discomfort in the pelvis , particularly with
physical activities. He further report ed that the second plaintiff due
to the injuries she has sustained will not be able to deliver a child
normally and will need her children delivered by way of a cesarean
section. He opines that the second plaintiff will not be suit ed for
physical work in the moderate to very heavy categories and that her
work will be limited to sedentary and light physical work. It is
anticipated that she will be able to work up until retirement age in
work of a light physical nature. However, the possibility (10%) that
she may still have to retire 1 or 2 years earlier than anticipated
cannot be discounted . The second plaintiff’s lifestyle has been
disrupted following the pelvic injury for which she will require further
treatment and most probably surgery to the right SL joint . The said
treatment and surgery will be associated with a temporary loss of
life amenities as well as further pain and suffering.
9.2. Dr Roper, a clinical and neuropsychologist , assessed the second
plaintiff on 11 November 2024. He reported that she sustained a
severe head injury because of the accident and that the severe
head injury is expected to result in significant long -term
neuropsychological difficulties and significantly disrupt her
psychological functioning. He reported that the second plaintiff’s
involvement in the accident resulted in a decrease in all arears of
her functioning, particularly her academic and occupational
functioning. Dr Roper also reported that the second plaintiff’s career
choices and progression will be hampered, especially if compared
to her expected pre -morbid level of functioning. He further report ed
that she is likely to find it extremely difficult to obtain and sustain
employment that is not sympathetic to her condition in the long
term.
9.3. Ms Jansen, an occupational therapist, assessed the second plaintiff
in March 2021 and again in September 2024 . She reported that the
second plaintiff’s physical abilities remain suitable for sedentary
work and that there is no improvement in her capacity for more
physically demanding work. She reported further that the second
plaintiff could not complete her initial studies in Somatology due to
accident-related injuries and cognitive difficulties . The second
plaintiff has since redirected her academic path toward s a
certificate in front office administration, suggesting an adjustment to
more sedentary career options. Ms Jansen reported that the
second plaintiff’s move to a potentially less lucrative field of study
might limit her future earning potential. The second plaintiff is an
unequal competitor in the open labour market compared to her
uninjured peers and, her physical limitations and cognitive
challenges significantly reduce her employability , so opines Ms
Jansen.
9.4. Dr Jacobs, an industrial psychologist, assessed the second plaintiff
on 27 September 2024 . Dr Jacobs reported that the second
plaintiff’s father is a farmer with a diploma in agricultural studies ;
her mother is a housewife with a grade 12 and a secretarial
certificate; and her brother has a BCom degree in Marketing.
Further that the second plaintiff retains work capacity, but it would
be at a lower level compared to what she would have been capable
of prior to the accident. Finally, that the second plaintiff might face
long and regular periods of unemployment due to her physical and
mental impairments.
9.5. Dr van Aswegen, a neurosurgeon , assessed the second plaintiff on
27 September 2024. He report ed that, due to the accident , the
second plaintiff suffered multiple injuries , including a moderate
traumatic brain injury and a head injury. He further reported that the
second plaintiff’s complaints about decreased concentration,
impaired memory and irritability , fit in with the so -called post -
concussive syndrome following traumatic brain injury. The long -
term cognitive and emotional consequences of mild traumatic injury
include somatic symptoms such as chronic headaches ; cognitive
symptoms such as attentional deficits ; reduced working memory
and impaired executive function; and psychiatric symptoms such as
depressed mood, insomnia, anxiety, poor motivation, social
withdrawal and interpersonal difficulties. Dr van Aswegen opines
that the second plaintiff will in all likelihood never reach her full
potential, even in the event that she manage s to pass all her
exams, she is at a high risk of developing the so-called “burn out” .
Further that the second plaintiff has a lifetime risk of between 2 -5%
to develop epilepsy due to her head injury and, she would have to
take anti -epileptic drugs . The use of anti -epileptic drugs would
usually be for a lifetime in these circumstances.
9.6. Dr Olivier, a psychologist , who assessed the second plaintiff on 11
March 2011and again on 1 June 2022, conducted a pyscho -
educational evaluation of the second plaintiff. He reports that her
neuro-cognitive functions were permanently damaged as a result of
the incident. He reports that her cognitive impairment will limit her
capability by about 20% and that other areas of her life will be
negatively influenced such as communication, social integration
and physical ability. He recommends that she be adequate ly
compensated for at least 20% of neuro -cognitive impairment
suffered from the accident.
9.7. Dr Shavel, a ps ychiatrist, assessed the second plaintiff on 24
January 2022. He opines that the second plaintiff sustained
significant orthopaedic injuries which are likely to further compound
her post-accident level of occupational potential. He further reports
that the second plaintiff retains work capacity but at a lower level
than what she had been capable of prior to the accident. He reports
that given the severity of the head injury sustained she must be
considered a vulnerable individual who can easily influenced by
outside influences. He reports that there has been a devasting loss
of amenities and that the second plaintiff’s enjoyment of life has
diminished.
9.8. The actuarial report was prepared by Munro Forensic Actuaries and
is dated 11 December 2024. The report is based on the report of
Dr Jacobs and information received from the plaintiffs’ attorneys.
This report makes provision for retirement at 65 and for the
deduction of contingencies uninjured at 20% and injured at 50%.
According to this report , the loss of future earnings is in the total
amount of R1 210 830.00.
ANALYSIS
Future loss of income/ Loss of earning capacity:
[10] The legal principle in respect of a claim for diminished earning capacity is
trite in that the plaintiff must be placed in the position she would have
been in had the injuries not occurred. 2 In our law, the capacity to earn
money is considered to be part of a person ’s estate, and the loss or
impairment of that capacity constitutes a loss, if such loss diminishes the
estate.3 To succeed in the claim for loss or diminished earning capacity,
the second plaintiff has to establish on a balance of probabilit ies that, as a
2 Dippenaar v Shield Insurance CO Ltd 1979 (2) SA 904 (A) at 917A-D.
3 Ibid.
result of the accident, her earning capacity has been compromised,
resulting in the diminution of her estate.4
[11] When making an order for future losses, it is expected from the court to
make use of contingency deductions to provide for any future
circumstances which may occur but cannot be predicted with precision.5
[12] Whilst it is not dispute d that the second plaintiff will suffer a future loss of
income/ earning capacity , the amount of contingencies to be applied was
placed in dispute. The defendant submits that the same contingencies
ought to be applied pre and post-accident.
[13] It is trite that the application of contingencies is at the discretion of the
court. In this regard, Nicholls AJA writing for the majority in Road Accident
Fund v Kerridge6 (Kerridge) said:
“Contingencies are arbitrary and also highly subjective.
. . .
It is for this reason that a trial court has a wide discretion when it comes to
determining contingencies.”
[14] The percentage of the contingency deduction depends upon a number of
factors and ranges between 5% and 50%.7
[15] In Kerridge8 the Court expressed as follows:
4 Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) para 11.
5 Sithole v Road Accident Fund (35916/18) [2023] ZAGPPHC 355 (28 July 2023) para 30.
6 [2018] ZASCA 151; [2019] 1 All SA 92 (SCA); 2019 (2) SA 233 (SCA) para 42–43.
7 AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A) 812; De Jongh v Gunther
and Another 1975 (4) SA 78 (W) 81 at 83–84D; Goodall v President Insurance 1978 (1) SA 389
(W) at 393; Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3)
SA 105 (A) at 114–115D.
8 Supra fn 5 para 44.
“Some general rules have been established in regard to contingency
deductions, one being the age of a claimant. The younger the claimant,
the more time he or she has to fall prey to vicissitudes and imponderables
of life. These are impossible to enumerate but as regards future loss of
earnings they include, inter alia, a downturn in the economy leading to
reduction in salary, retrenchment, unemployment, ill health, death and the
myriad of events that may occur in one’s everyday life. The longer the
remaining working life of a claimant, the more likely the possibility of an
unforeseen event impacting on the assumed trajectory of his or her
remaining career. Bearing this in mind, courts have, in pre -morbid
scenario, generally awarded higher contingencies, the younger the
claimant.” (Own emphasis.)
[16] In N.P.S obo Z.S v Road Accident Fund9 the Court held that:
“Contingencies are risk factors which may affect an individual’s earning
capacity in future. They are applied to both the pre and post -morbid
calculations. If a claimant is no longer an equal competitor in the open
labour market, is a vulnerable employee or is enjoying an element of
sympathetic employment, the chances of job loss or loss of income are
significantly higher. It is customary in these circumstances to apply a
higher post-morbid contingency deduction to cater for this vulnerability”.
[17] The determination of contingencies includes factors such as the second
plaintiff’s age, the extent of her injuries, the prospect of her finding
employment suitable to her diminished employment capacity, her
retirement age, her qualifications and her mental health.
[18] I have regard to the following material facts that would impact the
determination of the appropriate contingencies:
9 (3614/2021) [2024] ZAECMKHC 87 (13 August 2024) para 16.
18.1. The second plaintiff suffered severe brain injury that has resulted in
significant long -term changes in cognitive functioning and
behaviour.
18.2. The second plaintiff suffered physical injuries that result in limited
employment possibilities that involve sedentary work.
18.3. There is a possibility that the second plaintiff will not be able to
work up until retirement age of 65 years.
18.4. The second plaintiff has to undergo further surgery on her left SI
joint.
18.5. The second plaintiff suffers from a depressive mood, post-traumatic
stress disorder (PTSD), anxiety and depression.
18.6. The second plaintiff will not be considered suited for manual labour
occupations and is therefore limited in her choices for employment
within the open labour market.
18.7. The bodily injuries will leave the second plaintiff in pain on a
frequent basis.
[19] I have considered the submissions of both parties in respect of the
contingency deductions to be applied herein. In exercising my discretion , I
am satisfied that the contingency deductions as submitted by the plaintiffs
and applied by the actuary (uninjured at 20% and injured at 50%) , are fair
in the circumstances of this matter based on the accepted reports of the
plaintiffs’ expert witnesses as was fully dealt with herein above.
Past hospital and medical expenses:
[20] As alluded to above, it was also in dispute whether the plaintiffs were
entitled to payment for the past medical and hospital expenses, on the
basis that these expenses were paid by the first plaintiff’s medical aid
scheme.
[21] The issue I had to decide is whether the defendant remains liable to
compensate a claimant for medical expenses paid by a medical aid
provider.
[22] In respect of this issue, the following evidence was led by the plaintiffs:
22.1. Mr S[...] B[...], the first plaintiff, testified that the second plaintiff is
his daughter. He testified that he is a member of Discovery Health
Medical Scheme (DHMS), and was a member of th is medical aid
scheme at the time of the accident. He confirm ed that the second
plaintiff received further medical treatment , which was paid for by
DHMS. Under cross examination , he further confirmed that he is
now seeking to recoup the amounts paid by DHMS for the second
plaintiff’s medical costs from the defendant.
22.2. Vusumuzi Shabalala, employed by DHMS as administrator -MVA
(Third Party Recovery Services) , testified that the payments were
made by DHMS and that the payments were related to the
accident.
[23] It is not in dispute that the plaintiff’s past medical and hospital expenses
amounted to R452 236.85 and that these expenses have been paid in full
by DHMS.
[24] In Discovery Health (Pty) Ltd v Road Accident Fund and Another 10 the
defendant’s directive stating “[a]ll RAF offices are required to assess
claims for past medical expenses and reject the medical expenses
claimed if the Medical Aid has already paid for the medical expenses” was
found unlawful and set aside by Mbongwe J on 27 October 2022.
10 [2022] ZAGPPHC 768; 2023 (2) SA 212 (GP).
[25] The Court in Van Tonder v Road Accident Fund11 re-affirmed that:
“The RAF’s statutory duty to compensate for past medical expenses, as
mandated by the Road Accident Fund Act, is not discharged by the
involvement of a private insurer. The Act ensures that a claimant is
indemnified for all reasonable medical costs incurred due to injuries
sustained in a road accident, and the fact that a medical aid has stepped
in to settle those costs does not alter the RAF’s obligation to reimburse the
claimant.” (Own emphasis.)
[26] Subsequently, the defendant published two more directives to a similar but
qualified effect. On 17 December 2024 , in Discovery Health (Pty) Ltd v
Road Accident Fund and Another ,12 the Court found that the subsequent
directives remained in effect until reviewed and set aside as they were
substantially different from those set aside by Mbongwe J. On 9 April
2025, Discovery Health (Pty) Ltd was granted leave to appeal to the
Supreme Court of Appeal.13
[27] While the two subsequent directives issued by the defendant continue
being in operation as the matter is pending before the Supreme Court of
Appeal, more need not be said about them because they are not
applicable in this case . The defendant did not supplement its papers to
rely on those directives and or argue the retrospective applicability thereof
in casu.14
[28] It is common cause that DHMS paid the past hospital and medical
expenses by virtue of a contractual arrangement between itself and the
first plaintiff. By doing so, DHMS discharged its contractual obligation
11 (2023/013183) [2024] ZAGPJHC 1009 (7 October 2024). See also Fookwe v Road Accident
Fund [2024] ZAWCHC 115; 2024 JDR 1902 (WCC).
12 [2024] ZAGPPHC 1303; [2025] 2 All SA 113 (GP); 2025 (3) SA 225 (GP).
13 Discovery Health (Pty) Ltd v Road Accident Fund and Another (Leave to Appeal) (2023 -
117206) [2025] ZAGPPHC 363 (9 April 2025).
14 Fookwe v Road Accident Fund [2024] ZAWCHC 115; 2024 JDR 1902 (WCC) para 27.
towards the first plaintiff in terms of law and the private contract entered
into between the parties. Such a contract is only binding between the
parties to the contract, and not third parties, such as the defendant in this
matter.
[29] In conclusion, I find that the first plaintiff has proved that he is entitled to
be compensated by the defendant for the past medical expenses incurred
and related medical services employed as a result of the injuries the
second plaintiff sustained due to the motor vehicle accident.
ORDER
[30] In the premise, the following order is made:
A. BY AGREEMENT BETWEEN THE PARTIES THE FOLLOWING
ORDER IS MADE:
1. Payment by the defendant to the Plaintiffs in the sum of R 1 000
000.00 (one million rand) which amount is compiled as follows:
1.1. R1 000 000.00 (one million rand) in respect of general
damages;
1.2. The defendant is ordered to furnish the Second Plaintiff with an
undertaking in terms of section 17(4)(a) of the Road Accident
Fund Act 56 of 1996, for 100% of the costs of the future
accommodation of the Second Plaintiff in a hospital or nursing
home or the treatment of or the rendering of a service or the
supplying of goods to the Second Plaintiff arising out of the
injuries sustained by her in the motor vehicle accident on
27 July 2018, in terms of which undertaking the Defendant will
be obliged to compensate her in respect of the said costs after
the costs have been incurred and on proof thereof.
B. AFTER HAVING CONSIDERED THE EVIDENCE OF RECORD AND
HAVING HEARD EVIDENCE AND ARGUMENTS ON BEHALF OF
THE PLAINTIFFS AND THE DEFENDANT THE FOLLOWING ORDER
IS MADE:
1. Payment by the Defendant to the Plaintiffs in the sum of R1 663
066.85 (one million six hundred and sixt y-three thousand and sixty-six
rand and eighty-five cents), which amount is compiled as follows:
1.1. R452 236.85 (four hundred and fi fty-two thousand two hundred
and thirty -six rand and eighty -five cents) for past hospital and
medical expenses; and
1.2. R1 210 830.00 (one million two hundred and ten thousand eight
hundred and thirty rand) for the second plaintiff’s loss of future
income or earning capacity.
2. Payment of the amounts referred to in paragraphs 1 and 2 above to be
made into the following bank account:
HONEY ATTORNEYS – TRUST ACCOUNT
NEDBANK – MAITLAND STREET BRANCH, BLOEMFONTEIN
BRANCH CODE: 1[...]
ACCOUNT NO: 1[...]
REFERENCE: Y[...]
3. In the event that the Defendant does not, within 180 days (one
hundred and eighty) days from the date on which this order is handed
down, make payment of the capital amount the Defendant will be liable
for the payment of interest on such amounts at the rate of 11.25% (the
statutory rate per annum) calculated 14 (fourteen) days from the date
of this order.
4. The Defendant to pay the Plaintiffs’ taxed or agreed party and party
costs on the High Court scale, until the date of this order, including but
not limited to the costs set out hereunder:
4.1. The reasonable qualifying and reservation fees and expenses
(if any) of the following experts:
4.1.1. Dr A van Aswegen (neurosurgeon)
4.1.2. Dr DA Shevel (psychiatrist)
4.1.3. Dr L Roper (clinical and neuropsychologist)
4.1.4. Dr AL Vlok (orthopaedic surgeon)
4.1.5. Drs van Dyk and Partners (radiologists)
4.1.6. Ms A Jansen (occupational therapist)
4.1.7. Dr N Olivier (educational psychologist)
4.1.8. Dr EJ Jacobs (industrial psychologist)
4.1.9. Munro Forensic Actuaries.
4.2. Costs of counsel as on Scale B of the Uniform Rules of Court.
5. In the event that costs are not agreed:
5.1. The Plaintiffs shall serve a notice of taxation on the Defendant’s
attorney of record; and
5.2. The Plaintiffs shall allow the Defendant 180 (one hundred and
eighty) days to make payment of the taxed costs.
T TYUTHUZA
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
On behalf of the Plaintiffs: Adv De La Ray
On the instruction of: Honey Attorneys
On behalf of the Defendant: Mr M Magano
On the instruction of: Office of the State Attorney