IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 11177/2014
In the matter between:
NEIL MOODALIAR PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
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ORDER
___________________________________________________________________
In the premises it is ordered that:
The plaintiff’s claim is dismissed, with no order as to costs.
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JUDGMENT
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Mathenjwa J
Introduction
[1] The plaintiff instituted action against the Road Accident Fund (“the RAF”)
claiming liability for damages arising from injuries sustained by him in a collision with
an unidentified vehicle whilst on his motorcycle on 19 September 2012 near the
intersection of O-Flarty and Clare Roads in Durban.
[2] As a result of the collision , the plaintiff sustained serious injuries including a
fracture of the right femur , a laceration of the right knee cruciate ligament and injury
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to the right knee. The plaintiff’s claim for general damages and future medical
expenses has been settled. In this court the plaintiff claims loss of earnings under
three headings: early retirement, applicable contingencies and one year delay in
earning trajectory. Therefore, the issues to be determined in this case are firstly,
whether the plaintiff will be compelled to retire early and secondly whether the
plaintiff’s delay for a period of one year before joining his wife in the United States of
America (“the USA”) resulted in him losing earning capacity. In making a finding that
the plaintiff has incurred a loss of earning s when he delayed joining his wife in the
USA, I would have to draw a conclusion that the delay was linked to the accident
Evidence
[3] The plaintiff testified that after his collision, he was admitted to St. Augustine’s
Hospital where he was treated for ten days. He underwent various surgical
procedures and had several screws inserted into his bones. He then underwent
physical therapy. Thereafter, he stayed at home for two months, but during this time
he was paid his full salary. After the accident , he had to use crutches for a year.
From January 2014 to December 2014, he went on sabbatical leave for purposes of
completing his degree. At no time after having sustained injuries was he
unemployed.
[4] At the time of the accident , he was employed by Der vico as a senior system
analyst. He had been working for the same company for 15 years. After sustaining
injury, he had to work at home. Although he was paid his salary, he lost out on
opportunities for promotion s and bonuses. Two years later , he joined his wife who
was in the USA where he, together with others , opened a software company. His
role in the company was head of development and operations . Since the screws
were not removed from his bones the healing of his femur was delayed. He is still
feeling a lot of pain , and years after the accident, he again went for surgery on his
right leg.
right leg.
[5] The plaintiff’s occupational therapist Ms Tori Sharratt and the defendant’s
occupational therapist Mr Henry Msimango in their joint minutes agree d that the
accident resulted in the plaintiff sustaining impairment including persistent instability
pain in the knee, reduced range of motion and muscle strength in the right knee,
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back pain, bilateral integration and sequencing of lower limbs, difficulty with high
level of mobility, reduced balance, and reduced physical endurance. The therapists
also agree d that the plaintiff’s functional capacity ha d been significantly reduced
post-accident and that he would not be legible for employment that requires full -light,
medium, heavy, and very heavy work. The y further agreed that the plaintiff
presented with residual psychological symptoms adversely impacting self-confidence
and self-worth with increased levels of stress.
[6] The therapists agreed that if the accident had not occurred, it was likely that
the plaintiff would have continued working with the opportunity of promotion and
would have been competitive in the open market. The y also agreed that post-
accident, the physical demands placed on the plaintiff in a workday were restricted to
no greater tha n a s edentary to light capacity, with modifications and
accommodations; his occupational performance and productivity had been
diminished; consequently, the available job opportunities outside his current
employment were diminished, c onsidering his residual symptoms and functional
capacity. The therapists agreed that the plaintiff’s employment and earning capacity
had been compromised and early retirement was anticipated, which would be a
curtailment of his working life.
[7] The plaintiff’s industrial psychologist Ms Louise Neveling and the defendant’s
industrial psychologist, Ms Sandra Moses, agree d in their joint minutes that after the
accident, the plaintiff continued working for his then -employer Dervico, until the end
of 2013. In 2014, the plaintiff went on sabbatical leave for the entire year. He used
the time whilst on leave to complete his B. Com degree, which he had started in
2004; therefore, his absence from work in 2014 was not accident related . The
plaintiff procured work in January 2015 with a company called Digital Gaming
plaintiff procured work in January 2015 with a company called Digital Gaming
Corporation ( “DGC”) as head of products and development. He later became the
chief operating officer of both DGC and a subsidiary business, Mahigaming LLC, and
received income.
[8] Ms Sharratt testified that her report was based on the interview she had
conducted with the plaintiff and collateral information she had collected in respect of
the plaintiff. Mr Msimango also testified that he interviewed the plaintiff virtually and
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completed the assessment. After the accident, the plaintiff was required to do his
normal work with some adaptation. Msimango repudiated his initial view point in the
joint minutes when he had agreed that the plaintiff would not be able to compete with
peers in labour markets nor receive bonuses, since factually, he did compete with
peers. Although the accident occurred in 2012, the plaintiff still completed his degree
in 2014. Msimango opined that it was outside the area of an occupational therapist to
determine whether the plaintiff’s earlier retirement is curtailed by five years. Under
cross-examination by the plaintiff’s counsel Msimango stated that there is no
indication that the plaintiff ’s physical condition will degenerate due to injury because
it does not occur with everyone that with age the physical condition degenerates.
[9] Ms Nivelling, called by the plaintiff, testified that she had an interview with the
plaintiff in her office . She also collected his collateral information and spoke to his
previous and current employers. Nivelling opined that the plaintiff now competes at a
physical and psychological disadvantage for his own occupation and that as a result
of his functional deficits, available job opportunities outside of his current
employment are diminished. For these reasons, Nivelling recommend ed that a
higher-than-normal contingency for unemployment be considered in his injured state.
[10] Ms Sandra Moses, the industrial psychologist called by the defendant ,
testified that she based h er findings on reports made to h er and other collateral
information received from other experts . She opined that the plaintiff is likely to
continue working in his current capacity and noted that the plaintiff had progressed
extremely well. She agreed that a high contingency should be applied but opined
that there is no probability of the plaintiff becoming unemployed. Under cross -
examination she admitted that she did not interview the plaintiff, and her conclusion
examination she admitted that she did not interview the plaintiff, and her conclusion
was based on other experts reports and other collaterals.
Analysis and applicable legal principles
[11] The current payslip from the plaintiff’s employer shows that the plaintiff is
currently earning a salary of $340 413.33 per annum. The plaintiff’s counsel accepts
that the amount accurately reflects the plaintiff’s current annual earnings. The first
issue for consideration is the plaintiff’s contention that the accident resulted in him
incurring a one year delay in earning trajectory in the USA.
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[12] The principle regarding determination of l oss of income was restated in
Rudman v Road Accident Fund 1 where it was held that where a person’s earning
capacity has been compromised, “that incapacity constitutes a loss, if such loss
diminishes the estate ” and “he is entitled to be compensated to the extent that his
patrimony has been diminished”; however it is not sufficient that a person’s disability
giving rise to a diminished earning incapacity has been proved, the evidence must
prove that his incapacity constituted a loss which diminished his estate. 2 Applying
the principle to the present case means that, the mere fact that the plaintiff sustained
injuries which compromised his earning capacity would not constitute a loss if the
loss of income is not linked to the compromised capacity to earn income.
[13] The evidence before court shows that the plaintiff was never out of
employment after the accident save for the one year when he went on sabbatical
leave. The plaintiff had used the time when he was on leave to complete his B. Com
degree. Even though the plaintiff would not have receive d income when he was on
leave that loss of income was not related to his incapacity to earn income , instead
the purpose of taking leave was to enable him to complete his degree, something he
could not achieve for the past eight years prior to the accident. For these reasons,
the claim based on the one year delay in earning trajectory should fail.
[14] This brings me to the claim based on early retirement. There is no doubt that
the plaintiff’s earning capacity does appear to have been affected, as he had to be
accommodated in a sedentary position with modification s and accommodations.
However, the watershed moment is that all experts’ predictions that the plaintiff’s
occupational performance and productivity had been diminished as a result of the
accident which diminished the available job opportunities outside his current
employment were proven wrong.
employment were proven wrong.
[15] The difference of opinion that has emerged between the parties experts on
the issue of the plaintiff’s early retirement arose from the stark contrast between their
initial view in their joint minutes that the accident would have significant
repercussions on promotional opportunities and the plaintiff’s actual achievement
1 Rudman v Road Accident Fund 2003 (2) SA 234 (SCA).
2 Ibid para 11.
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after the accident. It is evident that following the accident, the plaintiff experienced
growth and secured a salary that greatly exceeded what he would have earned at
the time of the incident . Consequent to the wrong prediction about the plaintiff’s
promotional opportunities post-accident, Mr Msimango repudiated his initial view and
contended that the plaintiff would not be compelled to take early retirement due to
injuries. Ms Sharratt opined that the plaintiff would retire five years earlier and
Msimango had agreed initially that the plaintiff would retire early, without fixing the
years of early retirement.
[16] The defendant’s counsel referred to Dr Rajah’s report, the orthopaedic
surgeon, who examined the plaintiff and recorded that his life expectancy was
unaffected by the accident, and argued that there is no evidence that the plaintiff’s
employability may be limited due to pain, or physical limitations as a result of the
injuries sustained in the accident. Furthermore, the argument went, although the
plaintiff’s occupational therapist contends that the plaintiff will suffer chronic pain , the
defendant’s counsel submitted that the court must draw an inference from Dr Rajah’s
silence on his findings regarding the plaintiff’s loss of income. The plaintiff’s counsel
argued that although the plaintiff is an extremely motivated high performer who,
despite constant pain and diminished working capacity , had reached his expected
career ceiling ; the focus should not only be on the immediate aftermath of the
accident, but the real focus should be on the next 18 years.
[17] In my view , the performance of the plaintiff post-accident is one, but not the
only determining factor in establishing whether the plaintiff’s retirement years would
be curtailed due to the accident or not. Mr Msimango’s evidence was not credible on
material aspects. His rejection of the proposal that as the plaintiff grows older , his
material aspects. His rejection of the proposal that as the plaintiff grows older , his
health condition would be exacerbated is untenable, considering the plaintiff's
evidence that he still feels the pain , and still has screws in his bones. When
elaborating on the plaintiff’s emotions after the accident , he only attributed them to
the plaintiff’s divorce and self-esteem without reference to the serious injuries that
affected the plaintiff. Although in the joint minutes with the defendant's occupational
therapist, he opined that the plaintiff's retirement age will be curtailed due to the
accident, in court, he took a different stance on the issue and contended that the
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industrial psychologists would be the appropriate experts to determine the issue of
the plaintiff’s early retirement.
[18] Ms Moses did not conduct interviews with the plaintiff. She drew a conclusion
based on collaterals and reports drawn up by other experts. The function of an
expert witness was articulated by Wallis JA in AM and Another v MEC for Health ,
Western Cape3 in the following terms:4
‘…The functions of an expert witness are threefold. First, where they have themselves
observed relevant facts that evidence will be evidence of fact and admissible as such.
Second, they provide the court with abstract or general knowledge concerning their
discipline that is necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of the current state of knowledge and generally accepted
practice in the field in question. Although such evidence can only be given by an expert
qualified in the relevant field, it remains, at the end of the day, essentially evidence of fact on
which the court will have to make factual findings. It is necessary to enable the court to
assess the validity of opinions that they express. Third, they give evidence concerning their
own inferences and opinions on the issues in the case and the grounds for drawing those
inferences and expressing those conclusions.’ (Footnotes omitted.)
[19] Applying the above principles to the facts of this case , it is clear that Mr
Msimango’s views are not based on facts or general knowledge concerning his
discipline. His evidence that there is no likelihood that the plaintiff’s bone injuries will
degenerate as he grows older is unsubstantiated speculation. His selective
speculation of the facts that contributed to the plaintiff’s emotion al state and total
failure to consider the serious injuries sustained by the plaintiff cast further doubt on
the credibility of his evidence. Ms Moses’s evidence does not assist the court
the credibility of his evidence. Ms Moses’s evidence does not assist the court
because it is based on reports compiled by other expert s. She did not interview the
plaintiff, and there is no evidence that she even consulted with the experts who drew
these reports to verify the authenticity thereof. It is trite that for an expert opinion to
be underpinned by proper reasoning , it must be based on correct facts. In
circumstances such as the present, where Moses neither interviewed the plaintiff nor
verified the authenticity of the collaterals with the source they originate d from, her
opinion does not add value to the issues before the court.
3 AM and Another v MEC for Health, Western Cape [2020] ZASCA 89; 2021 (3) SA 337 (SCA).
4 Ibid para 17.
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[20] It is a well -established principle that the plaintiff carries the burden of proof
regarding future loss of earnings, which can only be fulfilled by presenting credible
evidence to substantiate his claims. The inadequacy of the defendant’s witnesses
does not relieve the plaintiff of this burden. The plaintiff cites Ms Sharrat’s
assessment, which suggests that his retirement age will be reduced by five years.
However, Sharrat fails to provide a foundation for her conclusion about this
reduction and does not elaborate on how she determined the five -year decrease in
retirement age.
[21] A distinctive aspect of this case is that both parties initially agreed that the
plaintiff's job performance and productivity had declined following the accident;
consequently, it was believed that his employment opportunities outside his current
position were also limited due to his remaining symptoms and functional ability. This
assumption has been proven incorrect. In fact, post -accident, the plaintiff has made
significant progress, securing senior roles in a new job outside his prior employment
and earning an income in dollars that greatly exceeds what he earned before the
accident.
[22] The principle applicable in determining damages for loss of earnings was
asserted in Southern Insurance Association Ltd v Bailey NO ,5 where Nicholas JA
stated as follows:6
‘Any enquiry into damages for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs
or oracles. All that the Court can do is to make an estimate, which is often a very rough
estimate, of the present value of the loss. It has open to it two possible approaches. One is
for the Judge to make a round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The
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.’
[23] In my view, while assessing loss of earnings requires speculation about the
future, such predictions need to be grounded in factual evidence. In this case, the
evidence indicates that prior to the accident, the plaintiff earned an annual income of
5 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).
6 Ibid at 113F-H.
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approximately R735 864 per annum . Post the accident, his earnings increased to
around $340 413,33, significantly exceeding his pre -accident income. Therefore, it
would be unreasonable to forecast any loss of earning capacity that contradicts
these established facts. Additionally, Ms Sharrat's perspective is largely speculative
and lacks a substantiated rationale; it stands in contrast to orthopaedic evaluations,
which determined that the plaintiff's post -accident injury would not impact his life
expectancy. I acknowledge that while the finding regarding life expectancy does not
automatically imply a lack of future earning capacity loss, without substantial
evidence indicating that the plaintiff will experience a decline in income, this aspect
assists the court in making informed judgment about how the injury may influence his
future earning capacity. Ultimately, the plaintiff has failed to demonstrate that he will
incur a future loss of earning capacity as a result of the injuries sustained in the
accident. Based on my assessment, it is unnecessary to deal with contingencies.
[24] This then brings me to the issue of costs. It is undisputed that the plaintiff
sustained significant injuries in the accident and that he acted neither recklessly nor
frivolously in pursuing his claim against the defendant, a n organ of state . However,
he failed to discharge the onus of proof required to demonstrate any past loss of
income or that his retirement would be adversely affected, resulting in a diminished
income due to the accident. In my opinion, this case is one where costs should not
follow the result; rather, each party should bear its own costs.
Order
[25] In the premises, the following order is made.
The plaintiff’s claim is dismissed, with no order as to costs.
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Mathenjwa J
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Appearances
Applicant’s counsel: MA Oliff
Instructed by: Thorington-Smith& Silver
La Lucia
Respondent’s counsel: N Govender
Instructed by: State Attorney
KwaZulu- Natal
Date of hearing: 24-25 March 2025; 20 June 2025
Date of judgment: 6 November 2025