SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Appeal Case No: A206/2024
Court a quo Case No: 63890/2019
(1) Reportable: NO
(2) Of interest to other judges: NO
(3) Revised: NO
Date: 12 September 2025
Signature:
In the matter between:
BOB, MJ Appellant
and
ROAD ACCIDENT FUND Respondent
Coram: Retief J, Terblanche AJ and Leso AJ
Heard: 23 July 2025
Delivered: 12 September 2025. This Judgment was handed down electronically
by circulation to the parties’ legal representatives via e-mail, by being
uploaded to CaseLines. The date of hand-down is deemed to be 11
September 2025.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
TERBLANCHE AJ
[1] The appellant appeals to this Court against the judgment handed down and
the order made by the Court a quo on 17 October 2023. The appeal is with
leave of the Court a quo.
[2] The question at the heart of this appeal is whether the Court a quo erred in
awarding a globular amount of R500 ,000.00 in respect of past and future
loss of earnings and/or earning capacity, with an apparent disregard for the
expert evidence and actuarial computations placed before the Court.
[3] To consider the answer to the question is to consider all the gacts before
the Court a quo.
FACTS
[4] The appellant is an adult male born on 10 April 1981, who instituted action
against the respondent due to damages he sustained as a result of a motor
vehicle collision which occurred on 11 December 2015 . He was 42 years
old on the date of the trial.
[5] The respondent accepted liability for the appellant’s damages.
[6] On 28 October 2018, the issue of liability was resolved between the parties
on the basis that the respondent is liable to the appellant for such damages
that the appellant can prove.
[7] At the trial, the issue regarding general damages was postponed sine die
and was referred to the Health Professions Council of South Africa for
adjudication.
[8] For the appellant’s future medical treatment, the appellant is entitled to an
Unlimited Undertaking in terms of section 17(4)(a) of Act 56 of 1996.
[9] The respondent did not oppose the further relief sought by the appellant
and the matter proceeded by default.
[10] The only issue that remained outstanding , was the determi nation of the
appellant’s past and future loss of earnings.
[11] The Court a quo granted an Order in terms of rule 38(2) that the facts,
assumptions and opinions as contained in the expert reports were admitted
into evidence.1 Consequently, the content of the experts’ reports by Dr DA
Birrell (Orthopaedic Surgeon), Dr M Mazabow (Clinical Neur opsychologist),
Dr L Nel (Psychiatrist), Ms A Greeff (Occupational Therapist), Ms Noble
(Industrial Psychologist) and Mr G Whittaker (Actuary), constituted
evidence properly brought before the Court a quo.
[12] According to the abovementioned experts the appellant sustained the
following injuries:
11.1. A laceration to the right thumb;
1 This evidence was accepted by the Court a quo. Practitioners would be well advised to, in
future, heed the warning sounded by the Full Bench in Van Schalkwyk v Road Accident
Fund, (A2024/106880) ZA GPJHB (29 July 2025), parr [26] to [42]
11.2. Soft tissue injury to the left shoulder;
11.3. Soft tissue injury to the lumbar back;
11.4. Shock and psychological trauma.
[13] Dr Birrell noted that the appellant was taken by ambulance from the scene
of the collision to the Madibogo Health Centre where he received treatment
including intravenous infusions and was transferred to the Mafikeng
Hospital the following m orning. He was x -rayed and his right thumb was
cleaned and dressed, and he was discharged the same day with
medication.
[14] Dr Birrell noted that the appellant, according to his follow -up addendum
report, has the following post-accident complaints:
13.1. He has frontal headaches three times per week;
13.2. He has left shoulder pain with heavy lifting a nd carrying. He notes
that this started just after the accident (he did mention right shoulder
pain during the previous assessment);
13.3. He has right thumb pain with cold/inclement weather; and
13.4. He has lower back pain with heavy lifting and carrying, and when
bending forward.
[15] With respect to the appellant’s right thumb, on examination Dr Birrell noted
that he still has scarring of the right thumb and that the tip of the thumb is
“quite bulbous”. There is also a central scar running down from the nail. The
nail itself according to Dr Birrell, appears to have suffered a fungal infection.
[16] With respect to an examination of the appellant’s left upper limb, Dr Birrell
noted that he co mplains of pain in the left shoulder and stated that there
might be a slight degree of impingement in the shoulder.
[17] With respect to the appellant’s right thumb, Dr Birrell opined that the thumb
should be removed, and the area treated with anti-fungal drugs.
[18] Dr Nel opined that prior to the accident the appellant was a healthy
individual with no predisposition for psychiatric illness and no psychiatric
history. To him his employment was a major part of his identity, and he
always maintained good family relationships.
[19] Dr Mazabow particularly noted that the appellant has the following
complaints:
18.1. Dizziness when bending over;
18.2. Memory difficulty;
18.3. Neck pain when sitting for long as well as pain in both shoulders
which prevent him from lifting heavy objects;
18.4. Lower back pain when sitting for long and when bending over or
when standing for long, also preventing him from lifting heavy
objects;
18.5. Pain in his right thumb, which is worse in cold weather, and he often
has to wear a glove in Winter;
18.6. Fatigability;
18.7. Increased alcohol consumption;
18.8. Social isolation;
18.9. Poor concentration;
18.10. Depression, anxiety and short temperedness;
18.11. Wording-finding difficulty; and
18.12. Erectile dysfunction.
[20] Dr Mazabow opined, in his follow -up addendum report, that the appellant
continues to experience a chronic, severe depressive mood disorder,
including suicidal thoughts and that his score of 33 on Beck’s Depression
Inventory is identical to that score given nearly four years ago at the initial
evaluation.
[21] The appellant also continues to exper ience chronic post -traumatic anxiety
symptoms, persisting for more than 7½ years after the accident, reflecting
his significant psychological traumatisation following the accident.
[22] Dr Mazabow also noted that the appellant has demonstrated a number of
cognitive difficulties on formal evaluation and his brother also reported that
he is sub ject to memory and concentration problems, with word finding
difficulties, behavioural changes, including fatigability, short temper and
social isolation.
[23] Dr Mazabow opine d that this is because of the combined effects of his
chronic, severe depression, chronic post-traumatic anxiety and chronic pain
effects.
[24] Ms Noble, the Industrial Psychologist, noted that the appellant left school in
the middle of his Grade 11 year, beca use he needed to go back home to
look after his mother, after his father had been arrested.
[25] With respect to the appellant’s work history, Ms Noble noted that the
appellant worked at a garden service company in Rustenburg from 2000 to
2003. After which he worked for 3 or 4 years for Mr Francois Basson at
Stella Pharmacy, cleaning and doing deliveries per bicycle. He left when
the pharmacy closed and was left unemployed and moved to Rustenburg.
[26] Ms Noble noted that on 3 January 2007 the appellant began workin g at
Lonmin Platinum at the Karee Mine in Rustenburg, as a conveyor belt
operator on the surface. Ms Noble confirmed this with the appellant’s
earnings certificates. The appellant also helped out underground when
there was a shortage of staff. He was howev er discharged for being absent
without permission and was unemployed for a period.
[27] Ms Noble noted that from a payslip for 3 November 2014, from the North
West Department of Public Works and Roads, it is indicated that the
appellant was appointed on 2 Dec ember 2013 as part of an Extended
Public Works Programme (“EPWP”), Bophirma Region, earning a
“periodical payment” (stipend) of R2 200.00.
[28] Ms Noble noted that the appellant was employed on 1 March 2015
(according to his payslips) at the Naledi Local Municipality in Stella, Vryburg
where he worked on a contract basis, which was a 12 -month renewable
contract, as a Bomag Operator (a Bomag machine is used to repair
potholes on the roads).
[29] Ms Noble opined that with respect to appellant’s job description that af ter
potholes were filled and levelled, the appellant would use the Bomag
vibrating machine to compact the tar. This was hard physical work and that
he had to use “power to turn it” (i.e. the Bomag machine). He was on his
feet for long stretches of time, using ear protection.
[30] Ms Noble also noted that the appellant used to work overtime “almost
everyday” and that he worked more overtime than the other employees as
his job was last in line in the process and that he was “sometimes” paid for
overtime. He never had any disciplinary action taken against him and his
contract was “ended”, and he was informed that it was not renewed.
[31] Ms Noble also noted that the appellant was on holiday at the time of the
accident (11 December 2015) and that he returned to work in t he first week
of January 2016, and that his vacation leave was not changed from
vacation leave to sick leave. On his return to work he did the same job for a
while teaching a certain Mr Thomas Jacobs the job, who was later
permanently appointed.
[32] In Ms Nob le’s second addendum report, Ms Noble noted, inter alia, that
according to a payslip dated August 2013, the appellant had in fact been
appointed at the Naledi Local Municipality in Stella, Vryburg, on 1 May 2012
and thus he had been working at the Naledi L ocal Municipality for much
longer than Ms Noble had initially been aware of. At the time of compiling
her initial report payslips directly before and after the accident were
unavailable, however, Ms Noble was provided with a payslip dated August
2015 (pre -accident – considering the accident occurred on 11 December
2015) indicating a basic salary of R1,680.00 per month and his January
2016 payslip (the month after the accident) of also R1,680.00 per month.
[33] Ms Noble opined that the basis of the quantificatio n for the appellant’s “but
for the accident scenario” is that at almost 35 years old at the time of the
accident, the appellant’s work history is characterized by a variety of
physically demanding, low -level labourer positions (garden services,
cleaner, do ing deliveries per bicycle, general worker on surface and
machine operator) interspersed with periods of unemployment.
[34] Furthermore, Ms Noble opined that due to the fact that the appellant taught
Mr Jacobs how to become a Bomag Operator, as it was, albeit after the
accident, postulated that the appellant would have been permanently
employed after the completion of his first twelve months contract as Ms
Noble opined that the appellant was obviously skilled in operating it.
[35] Ms Noble opined that machine operators (Operators Grade 2) work on a
Patterson Level A2. Based on PECS’ September 2015 , general salary
surveys, and operator grade 2 working in KZN (where the appellant was
working) earned an annual guaranteed package of approximately
R97 700,00 which, based on Mr Jacobs’ reported “current” earnings, was
recommended for quantification purposes, with yearly CPI increased until
the normal retirement age of 65 years old.
[36] Having regard to the accident which occurred on 11 December 2015, Ms
Noble considered the r eports of the abovementioned experts, had a
telephonic interview with Mr T Jacobs, a s well as an interview with the
appellant and telephonic follow-up interviews.
[37] Ms Noble noted the nature and extent of the appellant’s problems ,
particularly that:
36.1. His big gest problem is his lower back, as he cannot sit for long (it
was noted that he moved around in his chair, leaned back in the
chair and stood up during the consultation). He could not pick up
heavy articles and there is “a lot” of things that he could not do after
the accident. His local Clinic provides him with pain block and an
ointment which he uses everyday.
36.2. He experiences headaches , which is not “that bad” “three times a
week”. He however notes that he did not suffer from headaches
before the accident and he uses pain block for this as well.
36.3. He can bend his right thumb, and experiences pain in the thumb in
wintertime and then needs to wear a glove. His right hand is not as
strong as before. His right arm at the shoulder sometimes “get tired”
and he experiences “needles-and-pins” feeling, also when sleeping.
36.4. He reported that sometime s he sits with friends, drinks beer and
does something on the weekend. On a Monday he will not be able to
remember some of the things that happened over the weekend. He
also indicated that he sometimes goes to the shop but will then
totally forget what he wanted to buy. He indicated to Ms Noble that
he is not good with dates as well as years and that he has to make
notes in his diary.
36.5. He does not experience neck pain but it “sometimes get tired”.
36.6. He also indicated that he thinks too much which makes him d rink
alcohol. He says it works for him when he is drunk because he
forgets all “those things” . He indicated that he drinks “much more”
than before the accident and he doesn’t know if it is a problem or not,
but he stated that it does help him. He is never involved in physical
altercation when he is drunk, but he says he is “short-tempered”.
36.7. He also indicated that what hurts him the most is “not working”.
[38] Ms Noble considered the following opinions of the abovementioned experts,
as set out in her first addendum report:
37.1. Dr Birrell – Orthopaedic Surgeon, estimated the appellant’s loss of
work capacity of not more than 6% as a labourer. Dr Birrell also
stated that the appellant has a 5% or less chance of requiring an
arthroscopy of the right shoulder and has a 1% to 2% chance of
requiring surgery to either the neck or the lumbar spine.
37.2. Dr Nel – Psychiatrist, opined that the appellant has a psychiatric
disorder, described as: Chr onic Post -Traumatic Stress Disorder
(PTSD) with a severe co -morbid depressive disord er, secondary to
alcohol abuse. Dr Nel opined that the psychotherapeutic treatment
will need to be long -term, but even when treated optimally, the
prognosis seems poor. The refore, no significant further improvement
is likely to be expected in the following twelve months. Dr Nel also
opined that the appellant will not reach his pre -accident level of
functioning and will not be able to compete fairly in the open labour
market.
37.3. Dr Mazabow – Neuropsychologist, opined that any concussion the
appellant sustained would have been mild and that his cognitive,
behavioural and interpersonal disturbances / changes are attributed
to the combined effects of a chronic, severe depressive mo od
disorder, with chronic post -traumatic anxiety symptoms and chronic
pain effects. Dr Mazabow opined that the appellant’s prognosis for
psychotherapeutic treatment of his depression is guarded, given the
chronicity of his symptoms. If his pain symptoms pe rsist in the long -
term, Dr Mazabow opined that he will remain prone to the depression
and its effects. Therefore, as a result of his clinical psychological
disturbances, combined with the limiting effects of his chronic pain
symptoms, the appellant would b e regarded as a vulnerable
employee, currently.
37.4. Ms Greeff – Occupational Therapist, opined that his impairment on
the day of assessment revealed impeded hand strength; that he
could not cope with the heavy component of the task due to poor
biomechanical po sturing, noted especially in relation to his spine;
and that his rate of work in the execution of work tasks that requires
light physical strength exertion and working with his arms on eye
level and at times above his head, measured slower than what is
normal. Furthermore, Ms Greeff could not secure a job match for
performing employment as a Bomag Operator or as a Jackhammer
Operator doing maintenance.
37.5. Ms Greeff noted the following barriers and factors contribute to his
non-securing of a job match with lon g-term vulnerability and
compromise expected: he retains symptomology, effective the
efficacious use of his right dominant extremity and his lumbar spine;
risk for lumbar spine surgery realising for him as he at such time
would no longer be seen suited for work tasks that would fall in the
medium or heavy ranges. He would then on a physical level only
qualify for employment that falls in the sedentary / light ranges;
sequelae from his psychological disturbances, rendering him poorly
capable of coping with c lerical administrative duties (sedentary / light
strength exertion) in the open labo ur market; his identified
depression and residual post -traumatic anxiety sequelae that results
in him presenting with maladaptive coping mechanisms and reported
increased a lcohol consumption. Furthermore, Dr Birrell postulated
that he will retain a 6% loss of capacity in the execution of
employment as a labourer. Ms Greeff opined that it is accepted that
this loss could be more in the event of spinal surgery, as he then
would probably find himself unemployable.
[39] Ms Noble, as set out above, noted that at the time of the accident the
appellant was a Bomag Machine Operator at the Naledi Local Municipality
and was a beneficiary of an expanded public works programme.
[40] Ms Noble also noted that Ms Greeff was informed by the appellant that on
his return to work he did light duty for a year after which his contract was
not renewed.
[41] After his contract was not renewed, he, according to Ms Noble, did piece
jobs instead Stella, fixing tap s, plumbing, painting, garden work, etc. Ms
Noble opined that “he did whatever work he could get”. He also apparently
earned less than R500.00 per month from these piece jobs although it
appears that he did not do these piece jobs every month. According to Ms
Noble he did piece jobs once or twice a week.
[42] After Ms Noble’s report she was provided with the appellant’s Capitec bank
statements from 1 January 2015 to 8 June 2021, which caused Ms Noble to
compile her addendum report. Ms Noble noted the payments p er month
and opined that the amounts deposited into his bank account do not
correspond with the available payslips, and in this regard noted that “it often
happens that EPWP workers are not paid regularly and that months are
skipped and then paid in one am ount, which may be a consideration.
However, the writer however cannot explain the bank statements, inclusive
of the two payslips without corresponding bank deposits below, have no
regard to the available earning certificate from the Naledi Local
Municipality”. Ms Noble then noted various payments including payments
from UIF on 19 November 2018 which continued until May 2019.
[43] With respect to past loss of earnings, Ms Noble noted that during the first
week of January 2016, the Municipality opened after the summer holidays
and Dr Birrell opined that any time off work was justified and due to the
accident. Ms Noble noted that Dr Birrell was informed that the appellant
performed lighter duties for ten months and that his salary was decreased,
and after obtainin g the 2015 payslips Ms Noble could confirm that his rate
per day of R80.00, remained the same in 2016, but increased to R150.00 in
2017, indicating that his rate per day remained the same in 2016 and then
increased in 2017.
[44] Ms Noble perused an earnings ce rtificate, which indicated that the
appellant’s last day at the Naledi Municipality was 31 August 2018, when
his basic salary was noted as R1,980.00 per month. Ms Noble , however,
noted that according to his Capitec bank statement he was paid R1,783.00.
[45] Ms Noble contacted Mr Jacobs and conducted a telephonic interview
wherein he confirmed that the appellant no longer had “the power” to
operate the Bomag machine and that he did “soft”, “not heavy” work. Mr
Jacobs also indicated that the appellant lost his wo rk because his contract
was “almost done” and he could no longer operate the Bomag machine. Mr
Jacobs also indicated that he never found the appellant to be under the
influence of alcohol at work and was unaware of the appellant’s alcohol use
at home.
[46] Ms Noble noted that the appellant was then unemployed during the Covid
19 pandemic, and that during 2021 at some point he worked as a driver on
contract for four months for a company involved in pole and network
testing. He stopped working there as he was pai d R1,200.00 per month,
which was too little.
[47] The appellant currently works, according to Ms Noble, in another EPWP, in
a feeding scheme at a school which he calls “NSNB”. Ms Noble noted that
his job description consists of him and four ladies cooking food for the
children at the school. He works 5 days per week from 05h00 to either
12h00 or 13h00. He needs help to stir “pap” because he experiences pain
in his spine. The pain is much more during cold weather. In April 2024,
when he would be working there fo r a year, he reportedly must give
someone else a chance to work. Ms Noble noted that the EPWP wage
amounts to R13.97 per hour, effective 1 March 2023. He began working
there in April 2022 and was still working there at the time of Ms Noble’s first
addendum report, earning R1,740.00 per month.
[48] Ms Noble confirmed in her second addendum rep ort that according to his
bank statements his earnings at Rekgaratlhile Secondary School, were
R1,640.00 per month and increased to R1,712.00 per month on 26 April
2023.
[49] Ms Noble suggested that the basis of the quantification for the appellant’s
“having regard for the accident” scenario be that he continued working at
the Naledi Local Municipality until 31 August 2018, earning R1,980.00 per
month (according to the earnings c ertificate) (i.e. 2 years and 8 months
post-accident). Considering his payslip for June 2017, with a rate per day of
R150.00 he, according to Ms Noble, received another two twelve -month
contracts post -accident, during which time Mr Jacobs reported that the
appellant was not used as a Bomag Operator and only performed light
duties. Ms Greeff established that a job match could not be secured for
performing employment as a Bomag Operator or a Jackhammer Operator
during maintenance and therefore Ms Noble opined that he lost out on the
opportunity to be appointed permanently at the Naledi Local Municipality.
Without a skill that made him more valuable to his employer ( Bomag
Machine Operator) and probably also due to the negative effect of his
alcohol abuse and PT SD, with severe co -morbid depressive disorder, it is
accepted that his eventual loss of employment at the Naledi Local
Municipality, was a direct result of the sequelae of the accident, according
to Ms Noble.
[50] Ms Noble then opined that the appellant’s work record from September
2018 is “poor” and based on the opinions of Dr Birrell and Ms Greeff, the
appellant is considered “a poor competitor for a suitable position based on
the fact that he is excluded from a wide range of general worker positions
he pre-accident would have been considered for”.
[51] Furthermore, Ms Noble opined that the appellant is considered “falling into
the odd -lot category of job seekers, i.e. one who, though not altogether
incapacitated for work, is so handicapped (in his case physically and
psychologically, where the recommended psycho -therapeutic intervention
has a poor prognosis or a guarded prognosis, that he will not be employed
regularly.
[52] Based on the available information and expert opinions, Ms Noble opined
that it is accepted tha t his future work will play out much the same as the
past three plus years, i.e. doing piece jobs or contract work, earning a
variable amount.
[53] Therefore, for quantification purposes, Ms Noble suggested the EPWP
wage of R13.97 per hour, effective 1 March 2 023, working 40 hours per
week. Ms Noble also recommended a higher post -accident con tingency
deduction as long periods of unemployment are expected due to his
physical and psychological condition, inclusive of alcohol abuse with a poor
/ guarded psychother apeutic prognosis, and probable permanent
unemployment post-surgery, if such realises.
[54] Mr Whittaker compiled a calculation based on the abovementioned reports,
specifically the addendum reports.
[55] Mr Whittaker calculated the past loss of earnings and/or ea rning capacity
with a 5% contingency deduction on the uninjured scenario and a 5%
contingency deduction on the injured scenario which equates to a total past
loss of R738,411.00.
[56] With respect to the appellant’s future loss of earnings, Mr Whittaker applied
a 20% contingency deduction on the uninjured scenario and a 30%
contingency deduction on the injured scenario which equates to a total
future loss of R1,376,665.00.
[57] This provides a total loss of earnings and / or earnings capacity of
R2,115,076.00.
[58] The Respondent did not dispute any of the evidence accepted by the Court
a quo . The opin ions of the experts stood uncontested and the actuarial
calculations by Mr Whittaker was not disputed or questioned. How did the
Court A quo then determine the globular value?
COURT A QUO’S REASONING
[59] The Court a quo relied on the principles as set out in Southern Insurance
Association v Bailey N.O. ,2 where the then Appellate Division observed
that:
“where the method actuarial calculation is adopted, it does not mean
that the trial Judge is tied down by inexorable calculations. He has a
large discretion to award what he considers right”.
[60] The Court a quo reasoned, with reference to Bailey that it had a large
discretion to award what it considered right and that the amounts to be
awarded in respect of past and future loss of earnings, depended on what
the trial court considered to be fair.
[61] The Court a quo then, without considering the correctness of the actuarial
computation done by Mr Whittaker, held that the sum of R500,000.0 0 is a
just and fair award for the appellant’s past and future loss of earnings and
awarded a globular amount of R500,000.00 in respect of both past and
future loss of earnings.
[62] The Court a quo unfortunately did not give any reasons as to how it arrived
at the amount of R500,000.00 . It did not disclose the basis upon which it
2 1984 (1) SA 98 (A).
calculated the said amount. It did not say whether it considered Mr
Whittaker’s actuarial computation and/or on what basis it decided to
disregard the computation by Mr Whittaker. The reader of the judgment is
left to wonder which facts the Court a quo accepted and which facts it did
not, whether the Court a quo had any basis for arriving at the amount
awarded or whether it was just a guess, whether the Court a quo had
regard to the opinions of the experts and the actuarial computation done by
Mr Whittaker and whether the Court a quo accepted or rejected those
opinions and the actuarial computation by Mr Whittaker.
[63] The failure to give reasons for the decision to award a globular amou nt of
R500,000.00 is unfortunate and left the parties in the position where they
have no way of knowing how the Court a quo exercised its discretion and
arrived at its decision to award a globular amount of R500,000.00. There is
no indication as to why th e Court a quo decided to reject Mr Whittaker’s
actuarial computation.
[64] The duty to give reasons for a decision by a Court is of great importance. It
is even restated in the Judicial Code of Conduct. 3 In the absence of
reasons, a Court of Appeal is in the unfortunate position of not being able to
properly consider the correctness of the Court a quo’s decision.4
[65] The only sensible approach to the resolution of the problem is for the Court
of Appeal to consider the evidence of all the experts, including Mr
3 See also: Vodacom (Pty) Ltd v Mak ate and Another , [2025] ZACC 13, paragraphs [54] to
[58]
4 Makate, par [58]
Whittaker, and to, on the basis thereof, determine the amounts which it
would have awarded in respect of past loss of earnings and future loss of
earnings.
[66] In the matter of Bailey, the then Appellate Division stated that in an inquiry
into damages for loss of earning capacities, that because of its speculative
nature it involves a prediction as to the future, without the benefit of crystal
balls, soothsayers, arguers or oracles, all that the Court can do is to make
an estimate, which is often a very rough esti mate, of the present value of
the loss.
[67] The Appellate Division further stated that the Court 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
upon the soundness of the as sumptions, and these may vary from the
strongly probable to speculative. It is manifest that either approach involves
guesswork to a greater or lesser extent.
[68] In a case where the Court has before it material on which an actuarial
calculation can usefully be made, the first approach does not offer any
advantage over the second. The Appellate Division held that on the
contrary, while the results of an actuarial computation may be no more than
an “informed guess” , it has the advantage of an attempt to ascerta in the
value of what was lost on a logical basis; whereas the trial judge’s “gut
feeling” as to what is fair and reasonable is nothing more than a blind
guess. It is true that, in the case of a young child, the assessment of
damages for loss of earnings is speculative in the extreme. Nevertheless,
even in such a case, it is not wrong in p rinciple to make an assessment on
the basis of actuarial calculations.
[69] The Appellate Division went on to state that where the method of actuarial
computation is adopted in assessing damages for loss of earning capacity,
it does not mean that the trial judge is “tied down by inexorable actuarial
calculations”. He retains his large discretion. However, one of the elements
in exercising that discretion is the making of a disco unt for “contingencies”
or the “vicissitudes of life” . These include such matters as the possibility
that the Applicant may in the result have a less than a “normal” expectation
of life, and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or to labour or unrest or general
economic conditions. The amount of any discount may vary, depending on
the circumstances of the case. The rate of discount cannot, of course, be
assessed on any logical basis: the assessme nt must be largely arbitrary
and must depend on the trial judge’s impression of the case. In making
such a discount for “contingencies” or the “vicissitudes of life” , it is,
however, erroneous to regard the fortunes of life as being always adverse:
they may be favourable.
[70] The Court a quo also referred to the decision of Road Accident Fund v
Guedes.5 The Supreme Court of Appeal in Guedes, noted the Bailey
judgment and noted that Courts have adopted the approach that in order to
assist in such a calculation , an actuarial computation is a useful basis for
establishing the quantum of damages . The Supreme Court of Appeal
further stated in Guedes:6
“(c) Where the amount of damages is a matter of estimation and
discretion, the Appeal Court is generally slow to interfere with
the award of the Trial Court – an appellant Tribunal cannot
simply substitute its own award for that of the Trial Court.
However, once it has concluded that interference is justified in
terms of the principles set out in (d) below, the Appe al Court is
entitled and obligated to interfere;
(d) The Appeal Court will interfer e with the award of the Trial
Court:
(i) where there has been an irregularity or misdirection (for
example, the court considered relevant facts or ignored
relevant ones; t he court was too generous in making a
contingency allowance; the decision was based on
totally inadequate facts);
(ii) where the Appeal Court is of the opinion that no sound
5 2006 (5) SA 583 (SCA).
6 At para 8: pp 576 to 578.
basis exists for the award made by the Trial Court;
(iii) where there is a sub stantial variation or a striking
disparity between the award made by the Trial Court
and the award which the Appeal Court considers ought
to have been made. In order to determine whether the
award is excessive or inadequate, the Appeal Court
must make its own assessment of the damages. If upon
comparison with the award made by the Trial Court
there appears to be a ‘substantial variation’ or a ‘striking
disparity’, the Appeal Court will interfere”.
[71] The principles enunciated by the then Appellate Division in Bailey have
stood for more than 40 years, have been confirmed and referred to with
approval by many courts and, most recently, by the Supreme Court of
Appeal in Vodacom (Pty) Ltd v Makate & Another , 2024 (3) SA 347
(SCA), fn 44 to par 151, p 388. Those pr inciples have to be applied by the
courts in assessing claims for past and future loss of earnings.
[72] It is not clear from the judgment why the Court a quo, which had the benefit
of extensive expert evidence and an actuarial computation of the past and
future loss of earnings placed before it, decided to completely disregard the
actuarial computation.
[73] In the absence of reasons given by the Court a quo, the only reasonable
inference is that it misconstrued the nature of the discretion vested in it and
so misdirected itself.
[74] It is worth mentioning that the long -standing practice in this Division is for
the Court to be guided by the expert evidence and the available actuarial
computations of damages, in the manner and subject to retaining the
discretion explained in Bailey.7
[75] In Chivambo8 it was held that the actuarial calculations must be based on
proven facts and realistic assumptions regarding the future. The actuary
guides the Court in making calculations. The Court has a wide judicial
discretion and therefor the final say regarding the calculation.
CONCLUSION
[76] In the absence of any evidence to contradict the evidence of the experts
placed before the Court a quo and in particular any evidence or even
argument to dispute, contradict or even qualify the evidence, opinion and
calculations by Mr Whittaker, there appears to be no reason for the Cou rt to
deviate from Mr Whittaker’s computation of the amounts of the appellant’s
past loss of earnings and future loss of earnings. The computation done by
Mr Whittaker is in accordance with the evidence of Ms Noble and the
contingency deductions made by him are realistic. He clearly did not
misdirect himself in any respect and there was no basis for the Court a quo
not to accept his computation.
7 Chivambo v Road Accident Fund , (2021/54368) [2025] ZA GPJHC 756 (29 July 202 5);
PN obo KNN v Road Accident Fund , (2020/27135) [2025] ZA GPPHC 759 (28 July 2025);
Van Schalkwyk v Road Accident Fund, (A2024/106880) GP JHB (29 July 2025)
8 In par [51]
[77] It follows that this Court would have awarded the amounts computed by Mr
Whittaker.
[78] In considering the matters of Bailey and Guedes, it is evident that the
Court a quo erred in not making an assessment of the loss of earnings
and/or earning capacity on the basis of the actuarial cal culations provided
to the Court on the basis of assumptions resting on the evidence of the
experts which was accepted by the Court a quo.
[79] No sound basis exists for the making of an award in a globular amount with
a complete disregard for the expert eviden ce and actuarial computations
placed before the Court.
[80] The Court a quo erred in disregarding relevant facts as set out in evidence
by the appellant’s experts and in so doing the Court a quo erred in not
applying a sound basis for the award made with respe ct to past and future
loss of earnings and/or earning capacity.
[81] There is thus a striking disparity between the award made by the Court a
quo in the amount of R500,000.00 with respect to the appellant’s loss of
earnings and/ or earnings capacity, and the a ward which this Court
considers ought to have been made.
[82] The amount which should ha ve been awarded by the Court a quo is
R2,115,076.00.
[83] This Court is therefor compelled to interfere with the award of the Court a
quo.
[84] In the premises the following order is made:
83.1. The appeal is upheld with costs, which costs shall include:
83.1.1. The costs of the application for leave to appeal; and
83.1.2. The costs consequent upon the employment of counsel in the
aforesaid application for leave to appeal and the appeal, on
Scale B.
83.2. Paragraph 3 and 4 of the Order of the Court a quo is set aside and
substituted with the following:
‘3. The Defendant shall pay the total sum of R2 116 076.00 (Two
Million One Hundred and Sixteen Thousand and Seventy -Six
Rand) to the appellant’s attorneys, A dams & Adams, in full and
final settlement of the appellant’s claim for past and future loss of
earnings and/or earning capacity.
4. The aforesaid total sum of R2 116 076.00 (Two Million One
Hundred and Sixteen Thousand and Seventy -Six Rand) shall be
payable by direct transfer into the Trust Account of Adams &
Adams Attorneys, the details of which are as follows:
Account Holder: Adams & Adams Trust Account
Bank: Nedbank
Account Number: 1[…]
Branch Code: 198765
Branch: Pretoria
Ref: DBS/LKG/P3721’”
_________________________________
TERBLANCHE AJ
Acting Judge of the High Court
Gauteng Division
_________________________________
I agree: L.A. RETIEF J
Judge of the High Court
Gauteng Division
_________________________________
I agree: LESO AJ
Acting Judge of the High Court
Gauteng Division
Appearances:
Applicants:
Counsel for the Appellant: Adv. DS Gianni
Cell: 0828417283
Instructed by Attorneys: Adams & Adams
Tel: 0124326171
Email: David.Scheepers@adams.africa
Lindo.Gwala@adams.africa
Respondent:
Counsel for the Respondent: Adv. Mabuyisa
Instructed by Attorneys: State Attorneys
Tel: 0124295000
Email: lorrainemb@raf.co.za
Date of hearing: 23 July 2025
Date of Judgment: 12 September 2025