2
[3] At the outset the court was informed and it was common cause that merits as
well as quantum was in dispute. Furthermore, it was clear that general damages
was to be postponed sine die for the reason that defendant did not make any
submissions regarding the seriousness of the injuries which placed the
adjudication of the seriousness thereof outside the jurisdiction of this court1.
[4] Counsel for the plaintiff moved an application in terms of Rule 6(5) read with Rule
38(2) of the Uniform Rules of Court. This application was not opposed and after
hearing Counsel for the plaintiff, the application was granted.
[5] The issues for adjudication were thus merits and quantum, specifically loss of
earnings and future medical expenses.
[6] In respect of the merits , the plaintiff proffered his Section 19(f) affidavit . The
accident report filed as part of the documentation submitted to the defendant
recounted how the collision occurred. The Section 19(f) affidavit was deposed to
on 12 June 2019 and the accident report was completed on 13 May 2019.
[7] It is important to note from the accident report that a third vehicle was also
involved in the collision which is not mentioned in the plaintiff’s Section 19(f)
affidavit.
[8] It is further important to note that the defendant did not place a version of the
insured driver before court and thus it is only the plaintiff’s version that is available
to adjudicate whether the plaintiff succeeds in proving negligence on behalf of
the insured driver.
[9] Ms Mhlongo for the defendant submitted that the collision occurred as a result of
the sole negligence of the plaintiff and accordingly, the plaintiff has not
succeeded in proving any negligence on behalf of the insured driver. Ms Mhlongo
submitted further that whilst she accepts the version of the plaintiff, the plaintiff
does not explain w hat he did to avoid colliding into the back of the insured
vehicle.
1 Road Accident Fund v Duma 2012 SCA 169
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[10] In my view, and on a totality of the evidence before me, the plaintiff, whilst
providing different versions which are not necessarily materially different, has
proven that the insured driver was negligent in that the insured vehicle without
prior warning suddenly moved into his lane. The question however, is wh ether
on his own version, the plaintiff was negligent. Counsel for the plaintiff in her
heads of argument and in her submissions to Court submitted that the plaintiff
was 20% negligent and the insured 80% negligent.
[11] Once again, on the totality of the evidence, I am of the view that the plaintiff was
negligent as correctly conceded by plaintiff’s Counsel but that such negligence
was 30% rather than 20%.
[12] In respect of future medical expenses, it is accepted and the insured driver
having been found 70% negligent, the defendant is to furnish the plaintiff with
undertaking in terms of Section 17(4) of the Road Accident Fund Act.2
[13] In respect of loss of earnings, the plaintiff proffered the medical expert reports as
well as affidavits the affidavits of the experts confirming their reports.
[14] It is trite that the court is vested with the discretion in determining the
contingencies to be applied in determining the loss of earnings of a given plaintiff
where the court is of the view that a loss of such earnings has been proven on
the evidence before it.
[15] The following expert reports have been considered:
15.1. Prof Chait: plastic surgeon – report dated 16 September 2020;
15.2. Dr P.A.G. Botha: urologist – report dated 28 January 2020;
15.3. Rosslyn Bennie and Caterine Rice: occupational therapists – report
dated 10 February 2021;
15.4. David de Vlamingh: industrial psychologist – report dated 2 December
2021 with an addendum dated 22 May 2025;
2 Act 56 of 1996 as amended
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15.5 Munro Forensic Actuaries: actuaries – report dated 26 May 2025.
[16] The first issue that comes to light in respect of the loss of earnings is the proof of
earnings. The plaintiff filed a bank statement from Capitec Bank3 from which it is
difficult to discern his earnings and dated 16 June 2019.
[17] Ms Mhlongo for the defendant submits that it is difficult to follow the report of
Munro Actuaries for the reason that in respect of the past loss no factual basis is
laid for the amount he received in the past and thus the basis provided in respect
of the past loss. In my view, this criticism is valid and must be taken into account
in determining the contingency to be applied both in respect of the past loss as
well as the future loss.
[18] Accordingly, I am of the view that the following will apply in determining the loss
of earnings in this matter, for the reasons set out above:
Uninjured
Earnings
Injured
Earnings
Loss of Earnings
Past R1 041 200 -
Less contingency R208 240
@20%
-
R832 960 R832 960
Future R2 147 300 R1 001 400
Less contingency R644 190 @30% R200 280
@20%
R1 503 110 R801 120 R701 990
Total Loss of
Earnings
R1 534 950 –
30% =
R1 074 465-00
3 CaseLines: Section D63 – D65
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Attorneys for Plaintiff: WIM KRYNAUW INC
janelle@wkattorneys.co.za
Counsel for Plaintiff: Adv. N. Pather
Attorneys for Defendant: State Attorney Johannesburg
Nkatekom@raf.co.za
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