Brief Summary

Delict — Motor vehicle accident — Future loss of earnings — Plaintiff, a minor at the time of the accident, sustained injuries resulting in disabilities affecting his future earning capacity — Defendant conceded merits but disputed quantum of damages — Court finding that the plaintiff proved entitlement to damages for future loss of earnings, awarding R5 334 601.60 as fair compensation based on expert evidence and assessments.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a trial on quantum in a delictual claim for compensation against the Road Accident Fund arising from a motor vehicle accident. The only question for determination was the quantum of damages for future loss of earnings/earning capacity, flowing from injuries sustained by the plaintiff as a minor child in the accident.

The parties were Tshwantsho Billy Lesesa as plaintiff and the Road Accident Fund as defendant. The defendant had previously conceded the merits on a 100% basis in respect of the plaintiff’s proven or agreed damages, and the dispute that proceeded to trial was confined to the appropriate monetary award for future loss of earnings.

The procedural history reflected that the plaintiff had lodged a claim including general damages, future medical expenses, and future loss of earnings. The defendant furnished an undertaking to cover future medical and hospital expenses under section 17(4)(a) of the Road Accident Fund Act 56 of 1996, and paid R850 000 for general damages. The plaintiff thereafter issued summons in February 2024 for future loss of earnings in the sum of R6 662 007.00, which claim was defended. Although the plea did not dispute entitlement to loss of earnings, the parties remained in dispute on the amount to be awarded.

At the commencement of the trial, settlement negotiations failed. The defendant then sought a postponement to amend its plea (in essence to retract an admission), which application was refused. The plaintiff applied for the admission of expert affidavits and medico-legal reports in lieu of oral testimony, which application was granted. The matter then proceeded, with the defendant ultimately closing its case without leading any evidence.

2. Material Facts

It was common cause that on 26 March 2010, when the plaintiff was four years old, he was a passenger in a taxi that overturned after a tyre burst. The plaintiff sustained a mild traumatic brain injury, together with neck, left eye, and left ear injuries. He was rendered unconscious, transported by ambulance to hospital, and treated for four days.

The court accepted that, after the accident, the plaintiff developed hearing difficulties (particularly affecting the left ear), as well as visual impairment involving the left eye. On the plaintiff’s version, supported by expert material admitted into evidence, these impairments and the sequelae of the brain injury contributed to learning and performance difficulties at school and had ongoing consequences for his occupational prospects.

The plaintiff’s educational history included the fact that he failed Grade 4, but later progressed to and completed Grade 12, obtaining his matric certificate in 2024. He did not obtain a bachelor’s pass and applied to study marketing at a college, but had not received a response at the time of the hearing. The plaintiff expressed doubt about acceptance into tertiary study, attributing this to his hearing challenges and his school performance. The plaintiff’s mother testified that the plaintiff’s hearing challenges became apparent after the accident and that he was also forgetful and struggled to follow instructions, with teachers having complained about his hearing and poor performance.

The plaintiff’s case on future earnings relied materially on expert opinions to the effect that, but for the accident, the plaintiff would probably have achieved NQF level 7 and entered the labour market on that basis; post-accident, the plaintiff’s prospects were materially diminished, with a reduced educational trajectory and narrowed occupational choices due to the hearing and visual deficits. The expert material accepted by the court further indicated that, because the assessments occurred more than ten years post-accident, there was no realistic prospect of improvement in the plaintiff’s symptomology.

Although the defendant argued for materially higher contingencies (and also advanced the proposition that the principal impediment was hearing-related and potentially addressable), the defendant did not lead expert or other evidence to contradict the plaintiff’s expert evidence and closed its case without calling witnesses.

3. Legal Issues

The central legal question was the appropriate quantification of damages for future loss of earnings (or diminished earning capacity) attributable to the accident-related injuries. This was primarily a matter of the application of legal principles to facts, particularly the evaluation of expert opinion evidence and the court’s discretionary assessment of contingencies in projecting future earnings scenarios.

Two procedural and evidentiary issues were also determined in the course of the hearing. The first was whether the defendant had shown good cause for a postponement to amend its plea at trial stage. The second was whether the court should admit the plaintiff’s expert affidavits and medico-legal reports under Uniform Rule 38(2) read with section 3(1) of the Law of Evidence Amendment Act 45 of 1998, despite the defendant’s indication that it disputed certain postulations by the plaintiff’s experts.

4. Court’s Reasoning

The court refused the defendant’s postponement application on the basis that it was not brought timeously and rested on scant and unsubstantiated allegations, including the absence of supporting affidavit evidence from the person who allegedly made the pleading error or from an appropriate claim handler. The court considered that insufficient cause was shown to justify further delaying the administration of justice and the plaintiff’s interest in finality.

On the evidentiary issue, the court exercised its discretion to admit the expert evidence by affidavit and report, holding that it would be convenient and cost-effective to do so. In exercising that discretion, the court took the view that the mode of receiving evidence should facilitate efficient adjudication, and it granted the order sought in terms of Rule 38(2) read with the Law of Evidence Amendment Act.

In assessing the merits of the quantum claim, the court treated the expert opinions as well-reasoned and uncontroverted by contrary evidence, and concluded that they supported the plaintiff’s factual case. In doing so, the court invoked the principle that expert opinion must be logically founded and capable of supporting the conclusions advanced, and that a court may rely on such conclusions where they are properly motivated and not displaced by competing evidence.

On the accepted evidence, the court found that the plaintiff had proven that the accident-related injuries caused disabilities which, in turn, resulted in diminished future earnings. The court accepted that the plaintiff remained employable, but that his earning capacity and labour market competitiveness were reduced by the cognitive, hearing, and visual sequelae described in the expert material.

In quantifying loss, the court reaffirmed that precise mathematical calculation is not feasible in projecting future earning loss. It emphasised that the determination of contingencies is a matter for the court’s discretion and must be assessed case by case, taking into account a range of considerations such as the plaintiff’s age, the general hazards of life, and potential periods of unemployment arising from illness, accident, labour conditions, or economic circumstances. Applying those principles to the plaintiff’s circumstances (including his very young age at injury, the long-term nature of his sequelae, and the unchallenged expert projections), the court considered a particular actuarially-adjusted figure to be fair and adequate compensation for the future loss proved.

5. Outcome and Relief

The court held that the plaintiff was entitled to damages for future loss of earnings and determined that an amount of R5 334 601.60 was fair and adequate compensation on the evidence accepted by the court.

The court ordered that costs follow the result, and made the draft order attached as annexure “X” an order of court. The judgment itself identified the award amount and the costs principle, while the full operational detail of the final order was contained in the annexed draft order referenced by the court.

Cases Cited

The court referred to Madibeng Local Municipality v Public Investment Corporation 2018 (6) SA 55 (SCA) in relation to the reception of evidence via affidavit and report in appropriate circumstances.

In evaluating expert opinion evidence, the court referred to Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) and Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA).

On the approach to quantification and the limits of mathematical precision in future loss assessment, the court referred to Santam Versekerings Maatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) and Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A).

Legislation Cited

The judgment referenced the Road Accident Fund Act 56 of 1996, specifically section 17(4)(a), in relation to the defendant’s undertaking for future medical and hospital expenses.

The judgment also referenced the Law of Evidence Amendment Act 45 of 1998, specifically section 3(1), in relation to the admission of affidavit evidence.

Rules of Court Cited

The judgment referenced Uniform Rule 38(2), applied together with section 3(1) of the Law of Evidence Amendment Act 45 of 1998, to permit the admission of expert affidavits and medico-legal reports in lieu of oral evidence.

Held

The court held that the defendant had not established good cause for a postponement to amend its plea at trial stage, given the lateness of the application and the lack of substantiated evidence to support the alleged pleading mistake.

The court held that it was appropriate, in the exercise of its discretion, to admit the plaintiff’s expert affidavits and medico-legal reports into evidence under Uniform Rule 38(2) read with section 3(1) of the Law of Evidence Amendment Act 45 of 1998, notwithstanding the defendant’s stated disagreement with aspects of the experts’ postulations.

On the merits of the quantum dispute, the court held that the plaintiff had proven that the accident-related injuries caused disabilities that resulted in a loss of future earning capacity. The court further held that, applying discretionary contingencies to inherently uncertain projections of future earnings, an award of R5 334 601.60 constituted fair and adequate compensation for future loss of earnings. Costs were awarded against the defendant following the result.

LEGAL PRINCIPLES

The judgment applied the principle that the quantification of damages for future loss of earnings is not susceptible to precise calculation. The court endorsed the approach that the assessment involves estimating likely future earnings trajectories in “but-for” and “post-morbid” scenarios, tempered by judicially determined contingencies reflecting the general hazards of life and case-specific risks.

The judgment reaffirmed that contingency deductions fall within the court’s discretion and must be determined with reference to the particular facts, including the plaintiff’s age and potential future interruptions to employment arising from health, accidents, economic conditions, or other life circumstances. The judgment treated the selection of contingencies as an evaluative exercise directed at reaching a fair monetary approximation rather than a mechanically derived figure.

In relation to expert evidence, the judgment applied the principle that a court may accept expert opinions where they are well reasoned, logically grounded, and not displaced by contrary evidence. Where expert conclusions are uncontroverted and consistent with the factual matrix accepted by the court, they may be relied upon in determining causation and quantification in respect of earning capacity.

On procedure, the judgment applied the principle that a postponement is not granted as of right, particularly where sought at a late stage, and that an applicant must show good cause on properly substantiated facts. The judgment further reflected that the court retains a discretion to admit evidence on affidavit where permitted by the rules and statute, guided by considerations of convenience, cost-effectiveness, and the interests of justice.

Lesesa v Road Accident Fund (621/2024) [2026] ZAFSHC 17 (19 January 2026)