SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: 5272/2021
In the matter between
KARABELO SHAUN THABO TSOEU PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Tsoeu v The Road Accident Fund (5272/2021) [2025] ZAFSHC
389 (5 December 2025)
Coram: BOONZAAIER AJ
Heard: 7-8 October 2025
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The date and time for
hand-down is deemed to be at 11h00 on 5 December 2025.
Summary: Road Accident Fund Act 56 of 1996 – quantum – loss of
future earning capacity – contingency deductions – uncontested expert
evidence. The court emphasi sed the need to adjust contingency percentages in
line with the claimant’s personal circumstances, employment history and health.
___________________________________________________________________
ORDER
___________________________________________________________________
1 The defendant shall pay 100 percent of the plaintiff’s proven or agreed
damages.
2 The defendant shall pay to the plaintiff the sum of R 283 756 (two hundred and
eighty-three thousand seven hundred and fifty -six rands), in respect of the plaintiff's
claim against the defendant for future loss of earnings/earning capacity.
3 The aforesaid amount is to be paid into the following bank account:
Name of Account Holder: Symington De Kok Attorneys
Name of Bank: First National Bank
Account number: 6[...]
Branch Code: 250 655
Type of Account: Trust Account
Reference: TR0706fXT2374
4 The defendant shall be afforded a period of 180 calendar days from the date
of this order to be effect payment herein, during which period the plaintiff will not be
entitled to issue writ against the defendant.
5 The defendant is ordered to furnish the plainti ff within 180 days from date of
this order an undertaking in terms of s 17(4) of the Road Accident Fund Act
56 of 1996, for payme nt of 100% of the costs of the future accommodation of the
plaintiff in a hospital or nursing home, or treatment of or rendering of a service or
supply of goods to him arising out of the injuries that he sustained in the motor
vehicle collision that occurred on the 12 October 2019 and the sequelae thereof, after
such costs have been incurred and upon proof thereof.
6 The defendant shall pay the p laintiffs taxed party and party costs on a High
Court scale to date of this order, including all the travelling costs for the plaintiff to
attend all medico -legal examinations arranged by the plaintiff legal representatives
and attendance to trial, accomm odation for the plaintiff and AV Theron and
Swanepoel Attorneys, together with counsel fees (on scale B) , and the fees for the
following experts:
a Dr PJ Fisher (Orthopaedic Surgeon)
b Ms Enid Kruger (Occupational therapist)
c Dr Ziervogel (Orthopaedic Surgeon)
d Ms Lariska van Rooyen (Industrial Pshycologist)
e Human Morris Actuaries (Actuary)
7 The interest shall accrue at the prescribed statutory rate in respect of:
a The capital amount of the claim, calculated 14 (fourteen) days from date of
this order to date of final payment, in the event that payment is not affected within the
180 days from date of this order as stipulated in prayer 4.
b The taxed or agreed costs, calculated from 14 (fourteen) days from date of
taxation, alternatively date of settlement of such costs to date final payment in the
event that payment is not affected within the 180 days from date of taxation,
alternatively date of settlement of such costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Boonzaaier AJ
Introduction
[1] This matter is before the Court, for the determination of the quantum . The
merits which served before this Court have become settled with a 100 percent
apportionment in favour of the plaintiff. An undertaking in terms of s 17 of the Road
Accident Fund Act 56 of 1996, has also been tendered which has been accepted by
the plaintiff. The remaining issue thus in dispute, by agreement between the parties
and which the Court is called upon to adjudicate upon is the loss of earnings, more
specifically, the contingencies that need to be applied in respect of the future loss of
earnings as well as whether the plaintiff is employable or largely unemployable.
[2] The plaintiff has filed the following expert reports:1
a Dr. PJ Fisher (Orthopedic surgeon)
b Ms Enid Kruger (Occupational therapist)
1 Expert bundle.
c Dr Ziervogel (Orthopedic surgeon)
d Ms Lariska van Rooyen (Industrial psychologist)
e Human Morris Actuaries (Actuary)
[3] The defendant has not filed any expert reports and the plaintiff’s expert
reports are thus uncontested. The parties have agreed that the plaintiff be granted
leave to present his evidence in respect of the issues of quantum in terms of rule
38(2) of the Uniform Rules of Court, read together with s 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1988. The confirmatory affidavits of all of the above
expert witnesses has been handed in to Court and the parties request that same be
regarded as admissible evidence.
[4] The parties are ad idem as to the following:
a The plaintiff has suffered a loss of future income;
b The plaintiff`s latest actuarial calculations correctly reflect the amount of the
plaintiff’s loss of future income;
c The evidence of the plaintiff`s experts were not in dispute and would serve
before the court for purposes of the argument to be presented by the parties on the
issue of actuarial contingencies; and
d That the postulated pre-morbid income and contingency to be applied (being 15
percent)
Background of the matter
[5] On 12 October 2019, at Bergius Road, Sasolburg, Free State, within the
jurisdiction of this Court, a collision occurred involving a motor vehicle bearing
registration number H[...] (hereinafter the insured motor vehicle). The vehicle was at
the time driven by Mr Thabang Justice Nyaka, who lost control of it, causing it to
overturn. The plaintiff was a back -seat passenger in the insured vehicle. He was
found unconscious at the scene and transported to Fezi Ngubentombi Hospital,
where he later regained conscio usness. He sustained injuries to his right knee and
right wrist, as well as head and tongue injuries. X-rays were taken, he was assessed,
and he was discharged on the same day. He did not attend any follow -up treatment.
He returned to school one week later.
[6] As a point of departure regarding the plaintiff’s future loss of earnings, it is
appropriate, to outline his educational and employment background:
a The plaintiff was born and raised in Sasolburg by his parents. His father passed
away in 2009, after which he was raised by his mother, who is currently 58 -years old
and employed as a cleaner. He has two brothers and one sister, all of whom are
employed. The plaintiff is single, unmarried, and has no dependants.
b The plaintiff reported that he failed Grade 10 twice and Grade 11 once. At the
time of the accident, he was repeating Grade 11 at Iketsetseng Secondary School.
He passed Grade 11 at the end of 2019.
c The plaintiff’s highest level of education is Grade 12, which he completed post -
accident at the aforementioned school in 2020, at the age of 22. According to his
National Senior Certificate, he met the minimum requirements for admission to a
Diploma or Higher Certificate programme as gazetted.
d The plaintiff reported that he aspires to train as a firefighter. He further indicated
that he applied for admission to the Police Academy and stated that he passed the
first two screening tests. During a follow-up consultation with Ms Lariska van Rooyen
in November 2023, he confirmed that he is still in the process of applying; however,
several requirements remain outstanding before he may be accepted into the
academy, if at all.
e The plaintiff worked as a gener al worker on contract for a period of four
months during 2021, earning R1 900.00 every two weeks. It appears that he did not
work for longer than four months due to experiencing significant pain in his lower
back and right wrist. He has remained unemployed since. The plaintiff could not
recall the contact details of his previous employer, and no collateral information in
this regard could be obtained. Despite numerous requests, he also failed to provide
documentation or proof of the screening tests he claim s to have passed with the
South African Police Services (SAPS).
South African Police Services (SAPS).
Quantum
Loss of Earnings and earning capacity
Plaintiff`s submissions regarding the contingencies to be applied
[7] In regard to contingencies to be applied in the uninjured scenario, the plaintiff
suggests that the normal contingency deduction of 15 percent be applied to the
plaintiffs uninjured future income. The defendant did not present any evidence to
show that there are any negative factors that should have been accepted by the
court to increase the future uninjured contingency percentage. 2 In regard to the
contingencies deduction to be applied in the injured scenario, cognizance must be
taken of the significantly increased vulnerability of the plaintiff following the accident.
The plaintiff will need reasonable workplace accommodation in th e performance of
his duties and that he will be reliant on a somewhat sympathetic and /or
accommodative employer . Another factor which must be taken into account is the
fact that the plaintiff was rendered an equal competitor and more vulnerable
employee in the open labour market as unskilled/semi -skilled worker and that the he
may have to be more selective when choosing future jobs in order to protect his
affectionate joints. Dr Ziervogel and Dr Fisher both indicate that a knee replacement
may be needed within 20 to 30 years.
[8] Counsel argued that the above could be addressed by an appropriate higher
post-accident contingency. Counsel argued that 40 percent would be a fair
contingency deduction.
[9] Ms Gouws on behalf of the defendant argued that the plaintiff`s income has
already been reduced pre -morbid scenario (approximately a 16 percent reduction in
income over the span of plaintiff`s remaining working life) and that applying the
40 percent contingency deduction as proposed by plaintiff would not be fair and
reasonable, specifically having regard to the submissions which the defendant made
regarding the injuries sustained and the findings of the orthopedic surgeons. She
contends that an appropriate contingency reduction should be 10%.
[10] I turn to address the loss of earnings in the matter. For sake of brevity, I will
summarise all of the plaintiff’s expert reports below highlighting the most important
sections thereof.
[11] Dr Ziervogel, an orthopedic surgeon, stipulates that plaintiff `s X-rays of the
[11] Dr Ziervogel, an orthopedic surgeon, stipulates that plaintiff `s X-rays of the
relevant spine, and knee injuries revealed no obvious signs of an injury. The
available notes revealed a head injury and laceration of the tongue. After nearly
2 Van Ghent v Road Accident [2017] ZAFSHC 187 para 38.
three years it is unlikely that the headache is a post –concussion headache. The
laceration of the tongue healed and need no further attention. The available notes
revealed no wrist injury. Clinically the plaintiff has a possible capsular injury. Dr
Ziervogel concluded that the plaintiff sustained injuries which were managed
conservatively. Further on physical examination during assessment it was concluded
that the plaintiff has mechanical neck pain, a possible capsular injury to the wrist and
possible missed injury of the right k nee. The plaintiff’s normal life expectancy is from
an orthopedic point of view, not adversely affected by injuries.
[12] Dr Fisher, an orthopedic surgeon, opined that the plaintiff was diagnosed with
a superficial head injury, tongue laceration and had a soft tissue injury on the right
knee. It was concluded further on physical examination during this assessment that
there is pain in the right knee, the plaintiff showed sign s of post -traumatic stress
disorder (PTSD), anxiety and had healed laceration of the tongue. Dr Fisher stated
that a right wrist injury was not indicated in the notes he obtained. He opined further
that plaintiff has a capsular injury to his right wrist. H owever, no obvious signs of
instability or abnormal movement was noted and he recommended only pain
medication. Furthermore, he stated that no back injury was mentioned in the
available notes. The X -rays revealed no obvious signs of an injury to the right knee.
The plaintiff presented with a meniscal injury of the right knee, but X -rays revealed
no obvious signs of an injury.
[13] Ms Enid Kruger, an occupational therapist, mentioned that the loss of earning
capacity at the time of the accident plaintiff was a secondary learner and obtained
his matric certificate in 2020 , and has since not been able to secure a job. His
abilities meet the demands of light physical effort; however, he needs to preserve his
abilities meet the demands of light physical effort; however, he needs to preserve his
abilities to protect especially the right knee and exten d the time until surgery might
become necessary. She opines that as a resu lt of the accident plaintiff is rendered a
compromised and unequal competitor in the open labour market, resulting in limited
work prospects.
Pre accident Physical and cognitive challenges
[14] In respect of cognitive challenges, the plaintiff’s occupational therapist , Enid
Kruger reported that the cognitive screening revealed very poor ability and that the
plaintiff may find it difficult to be successful in any training due to the signs of
cognitive impairment. Ms Gouws accentuated the fact that plaintiff was not
diagnosed with a head injury, there is no report by a Neurosurgeon or a Neurologist.
[15] In respect of physical challenges, Enid Kruger reported psychological
screening revealed high stress levels There is also no report by a clinical
psychologist nor by a psychiatrist in this regard. The defendant argued that in the
absence of any such evidence to the contrary it must be accepted that the
psychological challenges are not accident related. It is the defendant`s argument that
the following injuries in the absence of any evidence to the contrary be accepted that
any challenge which plaintiff experiences relating to his injuries are not accide nt
related. The plaintiff`s orthopedic surgeon Dr Fisher stated that a right wrist injury
was not indicated in the notes he obtained but he opined that the plaintiff has a
possible capsular injury to his right wrist. However, no obvious instability or
abnormal; movement was noted and he recommended pain medication. No back
injury was mentioned in the available notes. The X rays revealed no obvious signs of
a right knee injury. The plaintiff presented with a meniscal injury of the right knee, but
x rays revealed no obvious signs of an injury.
[16] The calculation made by Human Morris is thus as follows:3
LOSS OF EARNINGS: Uninjured Injured Net
Earnings had accident not
occurred
R3 052 249.00 R2 567 395.00 R 484 854.00
Less contingency deduction
(15 percent)
R 457 837.35 R1026958
(40 percent)
R 569 120.65
Net Future Income R2594 411.65. R1 540 437.00 R1 053 974.65
3 Heads of argument plaintiff.
[17] The defendant on the other hand made the following calculations:
‘Loss of Earnings:
Pre morbid Earnings (Had the accident nor occurred)
Future Loss of earnings R 3 052 249.00 R3 052 249.00
Less contingencies 15 % R457 837.35
Total pre morbid Earnings R 2 594
411.65
Post morbid Earnings (Having regards to the accident)
Future loss of earnings R 2 567 395.00 R2 567 395.00
Less contingency 10 percent R2 567 39.50
Total post morbid Earnings R2 310 655.50
Total loss of earnings R283 756.15’
Applicable case law regarding contingencies
[18] It is trite that the determination of allowances for contingencies involves, by its
very nature, a process of subjective impression or estimation rather than an objective
calculation. The question of the contingencies deductions to be applied, as is the
issue of the calculation of the quantum of a future amount, such as loss of earning
capacity, are often difficult matters. Speculatio n inevitably abounds. The Court has a
wide discretion based upon a consideration of all the relevant facts and
circumstances.4 It is trite that the determination of a suitable contingency deduction
falls within the discretion of the court. In Southern Insurance Association Ltd v
Bailey,5 the advantage of applying actuarial calculations to assist in this task was
emphasised. It was stated that:
‘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, augers
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 a loss. It has open to it, two possible approaches. One is for
the Judge to make a round estimate on an amount which seems to him to be fair and
the Judge to make a round estimate on 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 and make an assessment, by way of mathematical calculations on the basis of
4 Engelbrecht v Road Accident Fund [2024} ZAGPPHC 440 para 38, De Jong v Du Pisani NO [2004]
ZASCA 43; [2004] 2 All SA 565 (SCA);2005 (5) SA 457 SCA para 47.
5 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) (Bailey NO) at 113G-114A.
assumptions resting on the evidence. The validity of this approach depends of course upon
the soundness of the assumptions and these may vary from the strongly probable to the
speculative. It is manifest that either approach involves guesswork to a greater or lesser
extent. But the Court cannot for this reason adopt a non-possumus attitude and make no
award.’
[19] Contingencies of whatever nature, generally serve as a control mechanism to
adjust the loss to the circumstances of the individual case in order to achieve justice
and fairness to the parties.6 In coming to a contingency calculation there are no fixed
rules and direct evidence cannot be given by an actuary. Actuarial evidence only
serves as a guide to the Court.7 Contingency deductions imply that provision is made
for the prospective loss at the time of assessment of damages might in any event
possibly have occurred independently of the accident in question.8 This configuration
would include a possibility that:
a a plaintiff’s working life may have been less than 65 years;
b a possibility of his death before he reaches the age of 65 years;
c the likelihood of him suffering an illness of long duration;
d unemployment;
e inflation and deflation;
f alterations on the cost-of-living allowance;
g an accident whilst participating in sport such as hockey or cricket or golf or at
any other time, which he would affect his earning capacity; and
h any other contingency that may affect his earning capacity.9
[20] In substantiation of the aforementioned, Dr Koch refers to some guidelines in
respect of contingencies:
‘“Normal contingencies”: as deductions of 5% for past loss and 15% for future loss.
“A sliding scale”: half % per year to retirement age, i.e. 25% for a child, 20% for a youth and
10% in the middle ag e and rely on the case law in Goodall v President Insurance 1978 (1)
SA 389.
Deferential contingencies are commonly applied that is to say 1% apply to earnings but for
Deferential contingencies are commonly applied that is to say 1% apply to earnings but for
6 Hall v Road Accident Fund [2013] ZAGPJHC 129 ; [2013] JOL 30456 (GSJ) ; 2013 JDR 1299 (GSJ)
para 52. See also Road Accident Fund v Guedes [2006] ZASCA 19; 2006 (5) SA 583 (SCA) at para 8.
7 Shield Insurance Co & D V Hall 1976 (4) SA at 431D.
8 Bailey NO at 116G-117 A.
9 Gillbanks v Sigournay 1959 (2) SA 11 (N) at 17.
the accident different percentage earnings having regard to the accident.10
Conclusion
[21] The plaintiff submits th at when the Court exercises its discretion and when
considering the relevant case law with regards to the contingencies to be applied in
respect of loss of earnings the appropriate determination by this Court would be the
applicable contingencies as per th e plaintiff’s actuarial calculation done by
Human Morris actuaries. Having regard to the supplementary heads of argument
from the defendant it is clear that the court must take into account all the surrounding
circumstances. I need to emphasize the need to adjust contingency percentages
in line with the claimant’s personal circumstances, employment history and his
health.
[22] In view of the opinions raised by the relevant experts as aforesaid and when
the Court exercises its discretion and considers the relevant case law with regards to
the contingencies to be applied in respect of loss of earnings, the appropriate
determination by the Court, that would be reasonable and just in the circumstances,
would be to apply the contingency, as it was suggested by the defendant.
[23] It is apparent taking into account the relevant expert reports filed that the
plaintiff has been rendered vulnerable and less competitive as a result of the
accident and its sequelae but to a minor extent The plaintiff abilities currently meet
the demands of light physical effort . As per the experts reports above, the plaintiff
may m eet the physical strength demands for particular occupations , he will not be
suited for manual work.
[24] In the result, it seems to be fair to award the following amount:
1 The defendant shall pay 100 percent of the plaintiff’s proven or agreed
damages.
2 The defendant shall pay to the plaintiff the sum of R 283 756 (two hundred
and eighty -three thousand seven hundred and fifty -six rands), in respect of the
plaintiff's claim against the defendant for future loss of earnings/earning capacity.
plaintiff's claim against the defendant for future loss of earnings/earning capacity.
10 R Koch The quantum year book 2017 Kock Consulting Actuaries ; Dlamini v Road Accident [2015]
ZAGPPHC 646 paras 29-30.
3 The aforesaid amount is to be paid into the following bank account:
Name of Account Holder: Symington De Kok Attorneys
Name of Bank: First National Bank
Account number: 6[...]
Branch Code: 250 655
Type of Account: Trust Account
Reference: TR0706fXT2374
4 The defendant shall be afforded a period of 180 calendar days from the date
of this order to be effect payment herein, during which period the plaintiff will not be
entitled to issue writ against the defendant.
5 The defendant is ordered to furnish the plaintiff within 180 days from date of
this order an undertaking in terms of s 17(4) of the Road Accident Fund Act 56 of
1996, for payment of 100 percent of the costs of the future accommodation of the
plaintiff in a hospital or nursing home, o r treatment of or rendering of a service or
supply of goods to him arising out of the injuries that he sustained in the motor
vehicle collision that occurred on the 12 October 2019 and the sequelae thereof,
after such costs have been incurred and upon proof thereof.
6 The defendant shall pay the plaintiffs taxed party and party costs on a High
Court scale to date of this order, including all the travelling costs for the plaintiff to
attend all medico -legal examinations arranged by the plaintiff legal repre sentatives
and attendance to trial, accommodation for the plaintiff and AV Theron and
Swanepoel Attorneys, together with counsel fees (on scale B), and the fees for the
following experts:
a Dr PJ Fisher (Orthopaedic Surgeon)
b Ms Enid Kruger (Occupational therapist)
c Dr Ziervogel (Orthopaedic Surgeon)
d Ms Lariska van Rooyen (Industrial Pshycologist)
e Human Morris Actuaries (Actuary)
7 The interest shall accrue at the prescribed statutory rate in respect of:
a The capital amount of the claim, calculate d 14 (fourteen) days from date of
this order to date of final payment, in the event that payment is not affected within
the 180 days from date of this order as stipulated in prayer 4.
the 180 days from date of this order as stipulated in prayer 4.
b The taxed or agreed costs, calculated from 14 (fourteen) days from dat e of
taxation, alternatively date of settlement of such costs to date final payment in the
event that payment is not affected within the 180 days from date of taxation,
alternatively date of settlement of such costs.
________________________
S BOONZAAIER
ACTING JUDGE OF THE HIGH COURT
Appearances
For the appellants: J van der Merwe
Instructed by: Symington De Kok Attorneys,
Bloemfontein
For the first to fourth respondents: J Gouws
Instructed by: The State Attorney,
Bloemfontein.