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compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 10857/2021
In the matter between:
BRANDON KLAASEN PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Klaasen v Road Accident Fund (Case no 10857/2021) [2025]
ZAWCHC … (DDMMYY)
Coram: NUKU J
Heard: 9 and 22 September 2025
Delivered: 27 October 2025
Summary: Delictual claim – quantum of the plaintiff’s claim for loss of earnings –
court to award costs based on ‘informed guess’ or ‘rough estimate’ where damages
are not capable of precise calculation.
ORDER
1. The plainti ff’s claim succeeds with costs on a party and party scale ,
including costs of counsel on scale B
2. The parties are directed to submit a draft order based on paragraphs [28] and
[29] of this judgment so that a final order can be made.
JUDGMENT
Nuku J:
[1] On 15 November 2019, the plaintiff was riding his bike at the corner of Halt
Road and Viking Way in Elsies River, Western Cape, when he was hit by a motor
vehicle with registration number J[…] (“the insured vehicle ”), driven by Mr.
Gcobani Maqula (“the insured driver”). He filed a claim with the defendant under
the Road Accident Fund Act, 56 of 1996, seeking comp ensation for damages he
suffered because of the injuries he sustained in the collision.
[2] The issue of the defendant’s liability to compensate the plaintiff was
resolved between the parties on the basis that the defendant shall pay the plaintiff
50% of the damages that he is able to prove. The various heads of damages have
also been settled between the parties, leaving only the claim for loss of earnings.
[3] Both parties involved industrial psychologists to assess the plaintiff’s los s of
earnings. The expe rts each prepared their own reports and then issued a joint
minute outlining the issues they agreed on and those they did not.
[4] The two experts agreed on two assumptions regarding the plaintiff’s earning
capacity after the accident. The first assumption wa s that the plaintiff would
continue his informal bin -cleaning service and earn R900 per month until
retirement. Based on this assumption, the plaintiff’s total earnings until retirement
amounted to R252 100.
[5] The second assumption was that he might find al ternative employment with
a sympathetic employer and earn R28 600 per year starting 1 January 2026. Based
on this assumption, the plaintiff’s earnings until retirement would total R649 700.
[6] The two experts disagreed on what the plaintiff’s potential career path would
have been if the accident had not occurred. In this regard, the defendant’s experts
proposed two possible career options for the plaintiff, with the plaintiff’s expert
suggesting one.
[7] The first career option proposed by the defendant’s expert was that the
plaintiff would have entered the public sector a t the salary level of a police
constable. Under this career path, the plaintiff’s earnings until retirement would be
approximately R6 842 100. Alternatively, if the plaintiff had been a semi -skilled
worker, his earnings until retirement were estimated to total around R2 974 000.
[8] The plaintiff’s industrial psychologist assumed that the plaintiff's basic
earnings of R1 821.47 per week would increase by R73 846 annually in real terms
each January, reaching R2 190.70 per week by 2030, then rising by R64.56 per
week annually in real terms each January until 2040, followed by inflation -based
increases until retirement. Based on these a ssumptions, the plaintiff’s earnings
until retirement would total R3 456 700.
[9] The scenarios described above were sent to an actuary , with a request to
calculate the loss of earnings for each . This process resulted in six calculations:
two based on the ass umptions made by the plaintiff’s expert and four based on the
defendant’s expert.
[10] During the hearing, the following reports were submitted by agreement as
exhibits: (a) the joint minute signed by the parties' industrial psychologists, Mr.
Dawie Malherbe ( “Mr Malherbe”) for the plaintiff and Ms. Amirah Davids (“Ms
Davids”) on behalf of the defendant, along with an addendum dated June 30, 2025;
(b) a medico -legal report prepared by Mr. Malherbe dated June 7, 2022; (c) a
medico-legal report prepared by Dr. J. Reid dated January 20, 2022; (d) a medico -
legal report prepared by Dr. Chris George dated February 2, 2021; and (e) a
medico-legal report prepared by Ms. Elspeth Burke dated November 22, 2021.
[11] Mr. Malherbe was the only witness called, and his testimony a ligned with
my summary above regarding the agreements and disagreements he had with Ms.
Davids, the defendant’s industrial psychologist. He also confirmed that the plaintiff
has not been able to find employment and continues to make a living through his
informal bin -cleaning service . His cross-examination was uneventful , and the
plaintiff’s case was closed after Mr Malherbe’s evidence. The defendant followed
suit and closed its case.
[12] During argument, the Court was informed that the parties had further
narrowed the issues by agreeing on the percentage to deduct from the plaintiff’s
uninjured earnings. The plaintiff initially proposed 70%, and the agreement was to
deduct 60%.
[13] The limited issues that remained to be determined were (a) which of the six
calculations should be used as the basis of calculating the plaintiff’s loss of
earnings, (b) the general contingencies to be deducted, and (c) costs.
[14] Regarding the calculations, the plaintiff’s counsel urged the Court to take a
practical approach by averaging the six calculations rather than preferring any one
of them. This was based on the argument that the plaintiff’s future loss of earnings
cannot be precisely calculated, and based on what was stated in Esso Standard SA
(Pty) Ltd v Katz 1, it was argued that the Court is not released from the duty to
assess damages with the evidence available and that a plaintiff cannot be nonsuited
simply because their damages cannot be precisely calculated.
[15] It has been further argued that if the Court cann ot determine more precisely,
it must base an award of damages on a “rough estimate.” 2 Lastly, it has been
submitted that a plaintiff must present to the court, which the plaintiff has done in
1 Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A).
2 Caxton Limited v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at p 573.
this instance, such evidence as is available, even if that evidence is not sufficient to
remove all the uncertainties about matters bearing upon the quantum of damages.3
[16] Four of the calculations were derived from the insights of the defendant’s
industrial psychologist. One calculation represented the plaintiff’s best -case
scenario, and another represented the worst -case scenario. The defendant argued
for using the calculation that would yield the worst -case outcome for the plaintiff,
asserting that the evidence from the plaintiff’s experts shows that the plaintiff can
complete his studies and perform sedentary work.
[17] The defendant’s argument that one calculation should be preferred over the
others is not based on the evidence pres ented to the Court but on the defendant’s
selective reading of certain reports that were not even debated with the relevant
experts in Court. The fact of the matter is that the defendant’s own expert, as
reflected in the joint minute, did not suggest any preference between the two career
options she proposed, even though she had the report that the defendant relies on.
[18] It would, in my view, be entirely arbitrary to prefer one calculation over
others when both industrial psychologists employed by the parti es did not even
attempt to do so. What is clear, though, is that the plaintiff has suffered a loss of
earnings and will, going forward, continue to suffer a loss of earnings for which he
must be compensated.
3 De Klerk v Absa Bank Limited 2003 (4) SA 315 (SCA) at para 33.
[19] As submitted on behalf of the plaintiff, the plaintiff cannot be nonsuited due
to the difficulties in calculating his loss. The Court has the evidence from which it
must award damages as best as it can.
[20] The argument for averaging the six calculations has some merit. As
mentioned earlier, the calculations based on the defendant’s expert have yielded
the best - and worst -case scenarios. In contrast, the one based on the plaintiff’s
expert has yielded a middle ground. The plaintiff is not even arguing for the middle
ground based on its expert calculations, because that would also be arbitrary, since
his expert did not and could not justify the preference of his assumption over those
of the defendant’s expert.
[21] Averaging the six calculations prevents the preference of one over others
and, in my view, is fair to both sides. The defendant cannot complain if four of its
calculations are included in the final result. Similarly, the plaintiff should not feel
wronged when two of his calculations are taken into account. For all these reasons,
the plaintiff’s loss of earnings will be calculated by averaging the six calculations
referred to above.
[22] The next issue is determining the appropriate general contingency deduction
for the plaintiff’s future uninjured earnings. The plaintiff arg ues for a 20%
deduction, while the defendant argues for a 25% deduction.
[23] The defendant justifies the 25% deduction by arguing that the plaintiff did
not complete his schooling. He had spent two years prior to the accident without
attempting to complete his high school diploma and instead cho se to work.
Additionally, he attended a technical school, and his father has a Grade 10
qualification.
[24] For his part, the plaintiff supported the 20% deduction referencing the
decision of the Supreme Court of Appeal (“SCA”) in Road Accident Fund v
Kerridge.4 The SCA in that case referred to another decision of th e Court which
had applied a 20% deduction for a 26 -year-old man. As the plaintiff is of a similar
age, it was submitted that a 20% deduction should be applied.
[25] The factors relied upon by the defendant do not justify a higher percentage
because they are only some of the issues to consider when determining a
contingency deduction. The fact that a 20% deduction was applied in respect of a
similarly aged person leads me to use a similar percentage, a 20% deduction,
which will therefore be applied.
[26] The plaintiff has been successful, and the costs will follow the outcome. The
defendant submitted that costs should be awarded on a party -and-party basis, with
counsel's costs on scale B.
[27] The plaintiff sought counsel’s costs at scale C. I do not believe such costs
are warranted. The case is not sufficiently complex to justify costs at scale C. Costs
will therefore be awarded on a party and party scale , with counsel’s costs on scale
B
4 2019 (2) SA 233 (SCA).
Conclusion
[28] To summarize, the plaintiff’s claim is to be calculated by averaging the six
calculations contained in the report prepared by Mary Cartwright Consultants CC
dated 1 July 2025. The contingency deduction s remain unchanged except for the
plaintiff’s future uninjured earnings, in respect of which the parties have agreed on
a 60% deduction in place of the 70% deduction that was used in the actuarial
calculations.
[29] The draft order submitted on behalf of the plaintiff indicated a capital sum of
R1 842 313.00, which was based on the 70% deduction mentioned earlier and
which the parties have now agreed to revise to 60%. The parties are therefore
asked to submit a revised draft order reflecting an amount based on the revised
60% deduction instead of the 70% deduction used in the actuarial calculations, so
that an order can be issued accordingly. That draft order should also amend the
costs to show that the costs of counsel are awarded on scale B.
Order
[30] As a result, the following order shall issue:
(a) The plaintiff’s claim succeeds with costs on a party and party scale ,
including costs of counsel on scale B, and
(b) The parties are directed to submit a draft order based on paragraphs [28] and
[29] of this judgment so that a final order can be made.
_____________________________
LG NUKU
JUDGE OF THE HIGH COURT
Appearances
For plaintiff: HG McLachlan
Instructed by: Kruger & Co, Goodwood
For defendant: C Thomas
Instructed by: State Attorney, Cape Town.