IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 3892/2020P
In the matter of:
RAVESH MAHARAJ PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
_____________________________________________________________________
ORDER
_____________________________________________________________________
The following order is granted:
1. Judgment is granted in favour of the plaintiff against the defendant for his claim
for loss of earnings in the sum of R8 908 500.
2. The plaintiff has a valid claim for future medical expenses and costs in terms of
s 17(4)(a) of the Road Accident Fund Act 56 of 1996 and is, therefore, entitled to an
undertaking in terms of s 17(4) (a), pursuant to the defendant’s ‘blanket election’ to
furnish an undertaking in such instance, recorded in Knoetze obo Malinga and Another
v Road Accident Fund (Pretoria Attorneys Association and Others as amici curiae)
[2023] 1 All SA 708 (GP).
2
3. The defendant is directed to pay the plaintiff’s costs of suit, such costs to
include the costs of trial for a period of three days and the costs of counsel on scale B.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
Pietersen AJ:
[1] The only issues remaining in this ma tter are the plaintiff’s claim for loss of
earnings and earning capacity as well as future medical expenses and costs. The
parties reached an agreement at the pre -trial stage that the defendant is liable for
100% of the plaintiff’s proven or agreed damages.
[2] The plaintiff’s claim arises from a motor vehicle collision , which occurred on 25
October 2019 when the defendant’s insured vehicle drove into the back of the
plaintiff’s vehicle . At the time of the collision, the plaintiff was a branch manager at
Fidelity Security. The plaintiff a 37 year old male, born on 16 May 1988.
[3] The parties agreed that the following documentary evidence , in the form of
reports, can be accepted as evidence:
(a) Orthopaedic surgeon’s report compiled by Dr Vic Oelofse;
(b) Neurosurgeon’s report compiled by Dr Nad Govender;
(c) Clinical psychologist’s report compiled by Ms Angela Cotterell;
(d) Industrial psychologist's report compiled by Mr Piet Vorster;
(e) Occupational therapist's report compiled by Ms Paroshni Pillay; and
(f) Actuarial calculations.
[4] The plaintiff called four witnesses , while the defendant , who was represented
at the hearing, elected not to present any evidence.
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[5] It is first necessary to consider the plaintiff’s injuries and resulting sequelae, as
contained in Dr Oelofse’s report. Dr Oelofse indicated that the plaintiff sustained a
cervical spine and thoracic spine injury during the collision and the hospital recorded a
whiplash injury and T -11 wedge fracture. The plaintiff complained of neck pain,
stiffness of the neck, and headaches, and mentioned that cold weather exacerbates
his symptoms.
[6] Dr Oelofse indicated that the injury to the cervical spine is as a result of the
acceleration-deceleration injury and future medical expenses are foreseen with a
possible anterior fusion. In respect of the T -11 wedge fracture, Dr Oelofse noted that
the patient underwent rhizotomies three months after the collision and at the time , he
took Myprodol and Stilpane t hree times per week. The plaintiff also presented with a
probable iatrogenic injury to his spinal cord , which will also involve future medical
expenses, including a possible fusion. Dr Oelofse recorded that the plaintiff was
working as a manager at the time of the collision. Dr Oelofse concluded that the
plaintiff finds it difficult to sit for long periods of time and travelling long distances will
be problematic, which will render the plaintiff office -bound in the future to protect his
back.
[7] The plaintiff proceeded to testify that he has been employed by Fidelity
Security for a period exceeding 15 years and has secured three promotions prior to
the collision. He has not been promoted after the accident in 2019. He further testified
that he wanted to join the S outh African Police Service but ultimately joined the
security industry. He explained that he suffered injuries during the collision, particularly
a back injury , as recorded by the expert reports. Regarding his responsibilities, he
indicated that he is responsible for a large area , which involves frequent long distance
travelling and that he now finds it difficult to do so due to the back pain whic h he
travelling and that he now finds it difficult to do so due to the back pain whic h he
experiences when driving. The plaintiff further indicated that he finds it difficult to visit
various clients and to conduct site inspections , as he can no longer walk for long
distances. He indicated that seniority in the security industry does not translate to
more sedentary work, but that one is required to remain physically able and mobile.
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[8] The plaintiff further testified that he uses medication often , during which times
he also cannot drive. The plaintiff mentioned one specific instance where he visited a
site, after which he had to stay over as a result of high levels of pain.
[9] During cross -examination, the plaintiff was asked about his qualifications for
his positions and it was suggested that he did not suffer any loss of earnings , as he is
still being employed. The plaintiff’s post-morbid position and the difficulties he
experiences were not challenged in cross-examination.
[10] The second witness on behalf of the plaintiff was Mr Kriben Moodley. Mr
Moodley testified that he was a general manager at Fidelity Security and he knew the
plaintiff prior to the collision. He mentioned that the plaintiff was an exceptional
employee with good leadership qualities. According to Mr Moodley, the plaintiff was
considered as part of the succession plan within the company. Mr Moodley testified
that the plaintiff was deserving of further promotions prior to the collision and would in
all pr obability have been promoted to general manager and a regional executive.
However, Mr Moodley indicated that , currently, the plaintiff would not be considered at
all for these positions due to his injurie s. He testified that the highest position the
plaintiff can now obtain is his current position and that he has therefore reached his
career ceiling. During cross -examination, Mr Moodley was questioned about the
number of promotional positions available, to which he responded that the company is
based nationwide and has approximately 60 000 employees. The company requires
senior managers to be hands on and the company therefore simply cannot take the
risk of promoting the plaintiff.
[11] The c ross-examination of Mr Moodley also centred on the plaintiff having
asthma, to which Mr Moodley responded that it would not have been an impediment to
the plaintiff’s career progress.
the plaintiff’s career progress.
[12] The plaintiff’s third witness was Ms Paroshni Pillay. Ms Pillay is an
occupational therapist and confirmed the contents of her report. Ms Pillay testified that
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she assessed the plaintiff and found that he experienced the following symptoms as a
result of the collision:
(a) Constant headaches;
(b) Cannot stand for longer than 15 minutes due to back pain;
(c) He cannot sit or walk for more than ten minutes due to back pain;
(d) He cannot run or ascend stairs and complains of pain in his head, neck, lower
back and both legs;
(e) He is easily fatigued;
(f) He presents with surgical scars and his memory and concentration are poor;
(g) His behaviour, personality and mood have changed and he is now moody,
irritable, sad, fearful and forgetful and can only sleep with medication;
(h) He experiences swelling of his lower back and has difficulty carrying or lifting
weighted objects;
(i) He experiences numbness of both legs in the mornings as well as pins and
needles in his legs and feet; and
(j) He also reported a fear of driving.
[13] Ms Pillay referred to the plaintiff’s educational history and his position at Fidelity
Security. In this regard , she mentioned that during 2006 , the plaintiff attended a Big
Brother training course and obtained grades E, D, C and B certificates. He also
attended firearm training and successfully completed a course in terms of the Firearms
Control Act 60 of 2000 . He holds a competency certificate from the South African
Police Service from 2012 and during 2013 , he obtained a Certificate of Excellence
from Fidelity Security.
[14] Ms Pillay further indicated in her report that the plaintiff was promoted during
2009 to the position of a supervisor and again in 2013 to that of an operations
manager. His last promotion came early in 2019, when he was promoted to a branch
manager. She testified that the position of branch manager required prolonged
standing, walking, driving, climbing as well as lifting of heavy objects.
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[15] After the collision, so Ms Pillay testified, the plaintiff was redeployed to lighter
duties and only attended to reports, emails and finances. He experienced difficulties
with prolonged sitting due to back pain, headaches and neck pain and he continues to
suffer these difficulties.
[16] Ms Pillay confirmed that the plaintiff’s difficulties correlated with her own clinical
assessment. She indicated that his post -morbid earning potential has been reduced
and he is unlikely to attain the levels of vocational success that may have been
possible in his uninjured condition. She testified that she found him to be an unequal
competitor in the open market as a result of his chronic physical and psychological
deficits and he is no longer suited to any medium, heavy or very heavy work , as he
experiences difficulty with light and sedentary work.
[17] During cross -examination, Ms Pillay was challenged about the plaintiff being
asthmatic and having injured his left knee as a child. She indicated that these matters
do not change her view and mentioned that the plaintiff may need to retire early ,
should he even maintain employment in his current position.
[18] The plaintiff’s last witness was Dr Peet Vorster, an industrial psychologist. Dr
Vorster testified that he assessed the plaintiff and delivered two reports. He confirmed
the contents of these reports. Dr Vorster testified that he took into account collateral
information from the plaintiff’s employer, salary advices and tax records and, in his
view, this information confirmed that the plaintiff was regarded as an excellent
performer prior to the collision. Various promotional opportunities were availab le to the
plaintiff based on his work performance and qualifications. He testified that the plaintiff
would probably have been promoted to general manager at Fidelity Security, at which
time his income would have amounted to approximately R70 000 per month in 2022
time his income would have amounted to approximately R70 000 per month in 2022
monetary terms. He could also have been promoted fu rther to a regional executive,
earning approximately R150 000 per month in 2022 monetary terms. If he were
promoted to general manager, the plaintiff could have earned R100 000 per month
and, as a regional executive, R160 000 per month in 2025 monetary terms. These
promotions would have occurred between the ages of 48 to 50.
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[19] Dr Vorster expressed an opinion that the plaintiff would have been promoted to
regional manager, general manager and regional executive at Fidelity Security and
would have reached his career ceiling by the ages of 48 to 50, ear ning R160 000 per
month. Thereafter, he would have received inflationary increases.
[20] Dr Vorster testified that post -morbidly, the plaintiff is struggling to perform his
duties as branch manager at Fidelity Security and Dr Vorster is not confident in the
plaintiff being promoted to a higher position. He mentioned that the plaintiff is now
regarded as a below -average performer due to his accident -related sequelae and his
post-morbid work performance means that he can , at best, only stay on in his current
position. During cross-examination, Dr Vorster was challenged on what a normal and
higher than normal post -morbid contingency should b e, to which he simply indicated
that a higher contingency should be applied when the injuries are serious , as in this
case.
[21] The plaintiff thereupon closed his case and the defendant indicated that it
would not be calling any witnesses and also closed its case.
[22] The plaintiff’s calculations to quantify his postulated pre - and post -morbid
positions were not disputed. The c alculations were premised on four scenarios in
respect of pre- and post-morbid positions:
SCENARIO A Uninjured
Earnings
Injured Earnings Loss of Earnings
PAST
Less contingencies
R2 747 700
-
R1 817 100
-
R2 747 700 R1 817 100 R930 600
FUTURE
Less contingencies
R20 365 600
15%
R6 268 600
25%
R17 310 760 R4 701 450 R12 609 310
TOTAL LOSS OF EARNINGS
R13 539 910
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The application of the R oad Accident Fund Amendment Act 19 of 2005 (RAF
Amendment Act) cap in this loss scenario does have an impact on the claim.
SCENARIO B Uninjured
Earnings
Injured Earnings Loss of Earnings
PAST
Less contingencies
R2 747 700
-
R1 817 100
-
R2 747 700 R1 817 100 R930 600
FUTURE
Less contingencies
R20 365 600
15%
R6 268 600
30%
R17 310 760 R4 388 020 R12 922 740
TOTAL LOSS OF EARNINGS
R13 853 340
The application of the RAF Amendment Act cap in this loss scenario does have an
impact on the claim
SCENARIO C Uninjured
Earnings
Injured Earnings Loss of Earnings
PAST
Less contingencies
R2 747 700
-
R1 817 100
-
R2 747 700 R1 817 100 R930 600
FUTURE
Less contingencies
R20 365 600
15%
R6 268 600
35%
R17 310 760 R4 074 590 R13 236 170
TOTAL LOSS OF EARNINGS
R14 166 770
The application of the RAF Amendment Act cap in this loss scenario does have an
impact on the claim
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SCENARIO D Uninjured
Earnings
Injured Earnings Loss of Earnings
PAST
Less contingencies
R2 747 700
-
R1 817 100
-
R2 747 700 R1 817 100 R930 600
FUTURE
Less contingencies
R20 365 600
15%
R6 268 600
40%
R17 310 760 R3 761 160 R13 549 600
TOTAL LOSS OF EARNINGS
R14 480 200
The application of the RAF Amendment Act cap in this loss scenario does have an
impact on the claim
The RAF Amendment Act cap applies as follows to the above calculations:
A B C D
Past R905 500 R905 500 R905 500 R905 500
Future R7 997 500 R8 003 000 R8 008 400 R8 011 500
Total R8 903 000 R8 908 500 R8 913 900 R8 917 000
Cap reduction 34.25% 35.69% 37.08% 38.42%
The RAF Amendment Act cap has reduced the claim in each scenario as illustrated
above. Contingencies are not be applied to the totals above, since they are
deducted before the cap.
[23] The general principle when assessing damages or loss of earning capacity is
that the plaintiff must prove that the reduction in earning capacity gives rise to
pecuniary loss.1 It has further been held that:2
1 Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) para 11.
2 Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE).
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‘[5] A person's all -round capacity to earn money consists, inter alia, of an individual's talents,
skill, including his/her present position and plans for the future, and, of course, external factors
over which a person has no control, for instance, in casu, considerations of equity. A court has
to construct and compare two hypothetical models of the plaintiff's earnings after the date on
which he/she sustained the injury. In casu, the court must calculate, on the one hand, the total
present monetary value of all that the plaintiff would have been capable of bringing into her
patrimony had she not been injured, and, on the other, the total present monetary value of all
that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury.
When the two hypothetical totals have been compared, the shortfall in value (if any) is the
extent of the patrimonial loss….
[6] At the same time the evidence may establish that an injury may in fact have no appreciable
effect on earning capacity, in which event the damage under this head would be nil.’
[24] It follows that a factual basis for the loss should be established, where
possible, on proved incomes and collateral information. In Southern Insurance
Association Ltd v Bailey NO,3 the Appellate Division held that:
‘In a case where the Court has before it material on which an actuarial calculation can usefully
be made, I do not think that the first approach offers any advantage over the second. On the
contrary, while the result of an actuarial computation may be no more than an "informed
guess", it has the advantage of an attempt to ascertain the value of what was lost on a logical
basis….’
The court further held that:4
‘Where the method of actuarial computation is adopted, it does not mean that the trial Judge is
"tied down by inexorable actuarial calculations". He has "a large discretion to award what he
considers right" ( per HOLMES JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at
considers right" ( per HOLMES JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at
614F). One of the elements in exercising that discretion is the making of a discount
for "contingencies" or the "vicissitudes of life". These include such matters as the possibility
that the plaintiff may in the result have less than a "normal" expectation of life; and that he may
experience periods of unemployment by reason of incapacity due to illness or accident, or to
labour unrest or general economic conditions. The amount of any discount may vary,
depending upon the circumstances of the case. See Van der Plaats v South African Mutual
Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 - 5. The rate of the discount
3 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 114C-D.
4 Ibid at 116G-117A.
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cannot of course be assessed on any logical basis: the assessment must be largely arbitrary
and must depend upon the trial Judge's impression of the case.’
[25] The facts of this matter present a young male person injur ed in a motor vehicle
collision. The defendant’s liability for 100% of the plaintiff’s proven or agreed damages
has been conceded and the plaintiff recorded that he is not pursuing a claim for
general damages. Therefore, the only issue remaining is that of the plaintiff’s future
medical expenses and his loss of earnings.
[26] The defendant, in written closing argument, denied that the plaintiff will suffer
future medical expenses and thus refused to provide an undertaking in terms of s
17(4) of the Road Accident Fund Act 56 of 1996 . This position adopted by the
defendant is hard to understand , considering that the defendant failed to take issue
with the contents of Dr Oelofse’s report. In his report , Dr Oelofse set out in great detail
the need for future surgery and treatment and also provided estimates of the costs
associated with such surgery and treatment, ranging between R100 000 and
R1 000 000. I am, therefore, satisfied that the plaintiff is entitled to an undertaking in
terms of s 17(4) pursuant to the defendant’s ‘blanket election’ to furnish an
undertaking, as recorded in Knoetze obo Malinga and Another v Road Accident Fund
(Pretoria Attorneys Association and Others as amici curiae).5
[27] Regarding the plaintiff’s claim for future loss of earnings, it is uncontested
before me that the plaintiff was a professional member of staff at his place of
employment and that he appeared to be highly sought after and viewed favourably.
The evidence indicates that he was on track for future promotions and would probably
have reached the position of a regional executive, as Mr Moodley testified.
Furthermore, if one considers the plaintiff’s work history , it also indicates rapid and
continuous progress.
continuous progress.
5 Knoetze obo Malinga and Another v Road Accident Fund (Pretoria Attorneys Association and Others
as amici curiae) [2023] 1 All SA 708 (GP).
12
[28] The defendant’s cross -examination about the plaintiff’s asthma failed to elicit
any relevant evidence. The plaintiff’s evidence was clear that his asthma has not been
an impediment to his career progress. Furthermore, no expert evidence was presented
by the defendant to support any inference that the asthma could have been a concern.
[29] The evidence seems clear that the plaintiff would have obtained three more
promotions, resulting in an income of R 160 000 per month at the age of 49. The
defendant failed to present any other version.
[30] Post-morbidly, the plaintiff’s career progress has effectively come to an end and
he is likely to be demoted , if retained at all , at his present employment. It was
undisputed that the plaintiff ’s difficulties with his lower back, his difficulties with
climbing stairs , his difficulties with sitting for long periods of time and driving over
extended distances would be problematic in executing his duties. The plaintiff’s claim
is properly substantiated by the experts ’ reports and supported by the evidence
presented before me. From the facts set out above, t here is a stark contrast between
the plaintiff’s pre - and post -morbid scenarios. The p laintiff’s claim is therefore only
limited by the application of the statutory cap and, in the circumstances, I am satisfied
that s cenario B is the most reasonable , which entails a 15% and 30 % contingency
reduction.
[31] The p laintiff is therefore entitled to judgment for the am ount of R8 9 08 5 00,
together with an undertaking in terms of s 17(4).
[32] I accordingly make the following order:
1. Judgment is granted in favour of the plaintiff against the defendant f or his claim
for loss of earnings in the sum of R8 908 500.
2. The plaintiff has a valid claim for future medical expenses and costs in terms of
s 17(4)(a) of the Road Accident Fund Act 56 of 1996 and is, therefore, entitled to an
s 17(4)(a) of the Road Accident Fund Act 56 of 1996 and is, therefore, entitled to an
undertaking in terms of s 17(4) (a), pursuant to the defendant’s ‘blanket election’ to
furnish an undertaking in such instance, recorded in Knoetze obo Malinga and Another
13
v Road Accident Fund (Pretoria Attorneys Association and Others as amici curiae)
[2023] 1 All SA 708 (GP).
3. The defendant is directed to pay the plaintiff’s c osts of suit, such costs to
include the costs of trial for a period of three days and the costs of counsel on scale B.
_____________________
PIETERSEN AJ