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: 1749/2019
In the matter between
GEORGE SEUN BOOYSEN PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
Link: 4535651
Claim: 560/12743939/1063/0
Neutral citation: Booysen v Road Accident Fund ( 1749/2019) [2026] ZAFSHC 252 ( 21
April 2026)
Coram: OPPERMAN J
Heard: The matter was set down for trial on 17 March 2026. By agreement
between the parties, it was determined that the final adjudication of the matter would be
decided on the basis of the final written heads of argument submitted on 27 March
2026.
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 16h00 on 21 April 2026.
Summary: Loss of income – proof of patrimonial loss – difference between physical
impairment and financial loss – principles restated.
2
ORDER
____________________________________________________________________________________
1 This order is in addition to the order dated the 17 th of March 2026 under the
above case number.
2 The defendant is ordered to pay the plaintiff the amount of R167 973.75 (ONE
HUNDRED AND SIXTY SEVEN THOUSAND NINE HUNDRED AND SEVENTY
THREE RAND AND SEVENTY FIVE CENTS) in respect of the plaintiff ’s claim for past
and future loss of earnings and earnings capacity resulting from injuries sustained by
the plaintiff in a motor vehicle accident which occurred on the 8
th of June 2018, which
amount is payable by the d efendant to the plaintiff within 14 (fourteen) calendar days
from date of service of this order by depositing same into the plaintiff’s attorneys of
record’s trust account, the details of which are as follows:
ACCOUNT HOLDER: AS BOSMAN ATTORNEYS
BANK: FIRST NATIONAL BANK
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 6[…]
BRANCH: BROOKLYN
BRANCH CODE: 251345
REFERENCE: AB/JN/R086
3 Should the d efendant fail to make payment of the capital amount within 14
(fourteen) calendar days from date of service of this order, the d efendant will be liable
for interest on the amount due to the plaintiff at the prescribed statutory rate per annum
as from the date of this order to date of final payment.
4 The defendant is ordered to pay the plaintiff ’s taxed or agreed party and party
costs on the High Court scale, which costs will be subject to the discretion of the Taxing
Master and will include but not be limited to, the following:
4.1 The reasonable qualifying fees of the following experts:
3
4.1.1 Dr K Sikhauli (Orthopaedic Surgeon).
4.1.2 Ms S Botha (Occupational Therapist).
4.1.3 Dr J Erasmus (Industrial Psychologist).
4.1.4 Mr N Waisberg (Actuary).
4.2 The costs of the plaintiff ’s counsel (Adv PJ Vermeulen SC), including counsel’s
day fee for 17th of March 2026, on Scale C.
5 Plaintiff is ordered to serve the notice of taxation of the plaintiff ’s party and party
bill of costs on the defendant.
6 The defendant is ordered to pay the plaintiff ’s taxed and/or agreed party and
party costs within 14 (fourteen) calendar days from the date upon which the accounts
are taxed by the Taxing Master and/or agreed between the parties.
7 Should the defendant fail to make payment of the taxed and/or agreed party and
party costs amount within 14 (fourteen) calendar days from date of this taxation and/or
settlement, the defendant will be liable for interest on the amount due to the plaintiff at
the prescribed statutory rate per annum as from the date of this taxation and/or
settlement to date of final payment.
JUDGMENT
____________________________________________________________________________________
Opperman J
Introduction
[1] This matter concerns the determination of the plaintiff ’s claim for loss of earnings
and/or earning capacity arising from injuries sustained in a motor vehicle collision on 8
June 2018.
[2] The merits of the claim have been conceded 100% in favour of the plaintiff .
General damages have been rejected and stand to be referred to the H ealth
Professions Counsel of South Africa. On 17 March 2026 the following order was made
by agreement between the parties:
4
‘1. The Plaintiff’s application in terms of Rule 38(2) is granted with costs.
2. The Plaintiff’s claim for General D amages is separated in terms of Rule 33(4) and for
later adjudication.
3. The Defendant is ordered to deliver to the Plaintiff, within 14 (fourteen) calendar days
from date of service of this order an undertaking in terms of Section 17(4)(a) of the Road
Accident Fund Act, Act 56 of 1996, wherein the Defendant undertakes to pay the
Plaintiff 100% of the costs of future accommodation, in hospital or a nursing home or
treatment of, or rendering of a service or supplying of goods to the Plaintiff pursuant to
the injuries Plaintiff sustained in the motor vehicle accident on 3 July 2016,
1 after the
costs have been incurred and on proof thereof.
4. The expert reports of the Plaintiff referred to below, are admitted into evidence, and the
factual allegations, assumptions, deductions and opinions expressed therein as
contained in the said reports are admitted by the parties and by agreement between the
parties entered in evidence before the court without the requirement to lead any further
evidence thereon:
Expert Reports:
4.1 Dr K Sikhauli, Orthopaedic Surgeon, report dated 17th July 2024 (as amended to
reflect retirement date at 60 years in paragraph 12.2.4 of report) and RAF4
serious injury assessment report dated 13th of June 2024 on pp. 1 to 39 in the
Quantum bundle.
4.2 Sandra Botha, Occupational Therapist, medical legal report dated 8th of
November 2024 on pp. 40 to 77 in the Quantum bundle.
4.3 J Erasmus, Industrial Psychologist, report dated 28 January 2025 on pp. 78 to
103 in the Quantum bundle.
4.4 Updated Actuarial report by Namir Waisberg dated 17
th of March 2026 handed
up in Court.
5. The Plaintiff will file his written Heads of Argument before the close of business on
Friday the 20th of March 2026 together with his proposed draft order and the Defendant
will file its written Heads of Argument before close of business on Friday the 27 th of
will file its written Heads of Argument before close of business on Friday the 27 th of
March 2026 together with its proposed draft order.
1 The date is incorrect. It is 8 June 2018.
5
6. The costs of today, the 17 th of March 2026, are costs in the course and will form part of
the order to be made by the court in adjudicating upon the Plaintiff’s claim for both past
and future loss of earnings and earnings capacity.’
The Plaintiff
[3] The plaintiff is a self-employed businessman who owns and operates a car wash
enterprise. He was 51 years old at the time of the incident and holds a Grade 12
qualification obtained in 1984, as confirmed by the industrial psychologist. The plaintiff’s
work history, as also recorded by the i ndustrial psychologist and consistent with that of
the occupational therapist, reflects that he was employed as a truck driver from 1992 to
1999, earning approximately R26 400.00 per annum. Thereafter, from 1999 to 2004, he
worked as a taxi driver, earning approximately R24 000.00 per annum. From 2004 until
the date of the accident, the plaintiff was self-employed, operating and managing a car
wash business under the name ‘ Papa G’s Carwash and General Trading’, from which
he derived an approximate annual profit of R360 000.00.
[4] Following the accident, the plaintiff was hospitalised for approximately one week
and thereafter recuperated for a further seven weeks. He returned to work in August
2018 and has continued performing his usual occupational duties to date, albeit with
reliance on additional employees to undertake the more physically demanding aspects
of the work.
[5] According to the plaintiff, his business has since yielded an increased profit of
approximately R600 000.00 per annum from August 2018 to the present.
[6] It is common cause that while bank statements were furnished confirming certain
payments received, it is apparent that the p laintiff conducts a substantial portion of his
business in cash, with the result that such statements provide only a limited reflection of
his actual income and expenses, both prior to and subsequent to the accident.
his actual income and expenses, both prior to and subsequent to the accident.
[7] As indicated, f ollowing the accident, the plaintiff resumed work and has
continued to operate his business on a full -time basis. The uncontested evidence
establishes that:
6
a) The plaintiff continues to perform the core functions of his business.
b) He has adapted his role by delegating heavier physical tasks.
c) The business has demonstrated sustained growth post-accident.
d) On the evidence of the industrial psychologist and the plaintiff , the plaintiff ’s
income increased from approximately R360,000.00 per annum (2018 terms) to
approximately R600 000.00 per annum by 2024.
Medical and Functional Evidence
[8] The orthopaedic evidence confirms injuries to the cervical, thoracic and lumbar
spine, as well as the shoulders and elbows. While these injuries are likely to result in
ongoing symptoms, the prognosis is generally described as fair. Importantly, the
orthopaedic surgeon did not conclude that the p laintiff is incapable of working, but
rather that residual symptoms may impact work performance.
[9] The occupational therapist found that:
a) The plaintiff remains capable of performing light work.
b) He continues to manage his business effectively.
c) He has successfully adapted by delegating physically demanding tasks.
d) He is likely to continue in his current role with appropriate adjustments.
No cognitive or psychological impairment affecting employability was identified.
Legal Principles
[10] The locus classicus regarding contingencies is the case of Southern Insurance
Association v Bailey
2 (Southern Insurance Association). The court decreed that: ‘where
the method of actuarial calculations 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’.
[11] The principles applicable to claims for loss of earnings or earning capacity are
trite. A plaintiff must prove, on a balance of probabilities: a diminution in earning
capacity; and that such diminution has resulted in patrimonial loss. It is not sufficient to
2 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) at 116G-H.
7
establish a theoretical or speculative impairment. The loss must be real and capable of
quantification.
[12] Zulman JA, with reference to various authorities including Southern Insurance
Association, ruled in Road Accident Fund v Guedes
3 that the dictum that evolved is that
the calculation of the quantum of the future amount, such as loss of earning capacity, is
not a matter of exact mathematical calculation. By its nature, such an enquiry is
speculative, and a court can therefore only make an estimate of the present value of the
loss that is often a very rough estimate. Courts have adopted the approach that, the
amount to be awarded as compensation and the figure arrived at depends on the
court’s view of what is fair.
Loss of Income
[13] The following position has been observed in our law: ‘For while earnings may
generally (and even frequently) be a fair indication of earning capacity, . . . there are
occasions where they part company, and where, therefore, it is important to clarify the
real object of compensation’.
4
[14] The test is two staged: The questions on which the court must decide, firstly is,
whether the plaintiff suffered loss of income because of the collision and, secondly,
whether there was any loss of earning capacity because of the sequalae due to the
injuries. If the answer to the last question was in the affirmative the question of
quantification of the loss of earning capacity would arise.
[15] The more accurate (and least problematic) way to calculate loss of earning
capacity is to base such calculation on loss of future income in cases where such loss
can be predicted with reasonable certainty. Marx, with reference to case law, concluded
aptly:
‘1 Earning capacity is a sui generis right, the object of which is the capacity to earn money.
One can agree with Visser and Potgieter that the legal object of the right contains elements of
3 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19 RSA; 2006 (5) 583 (SCA).
3 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19 RSA; 2006 (5) 583 (SCA).
4 P Boberg (1984) The Law of Delict at 539 as quoted by FE Marx, “Earning Capacity : Use It (For
Yourself) or Lose It, Rudman v Road Accident Fund 2003 2 SA 234 (SCA)”, Obiter (2004) 231-241 at 231
(Marx); Maduna v Road Accident Fund (5668/21) [2025] ZAWCHC 394 (1 September 2025).
8
patrimony but is also related to a person’s bodily integrity (Visser and Potgieter Law of
Damages 2003, 407). It has patrimonial as well as non-patrimonial elements and as such it can
be classified as personal immaterial property (2001 Neethling, Potgieter and Visser 53 fn 70 –
where reference is also made to Hawker v Life Offices Association of South Africa 1987 3 SA
777 (C) where the court refers to the non-patrimonial elements as “factors of personality”).
2 The right to earning capacity comprises a complex set of abilities which together make
up an asset in the estate of a person, and it must be assessed as a whole. The loss of an ability,
for instance the ability to hunt, does not necessarily give rise to loss of earning capacity, but can
give rise to an award for loss of amenities of life as part of general damages as was indeed
awarded by the court a quo in Rudman v Road Accident Fund (supra 238H-I).
3 Once loss of earning capacity is proven it is the duty of the court, from the evidence at its
disposal, to quantify that loss (see par 4 1-4 3 above).
4 Since Rudman v Road Accident Fund (supra), the loss of earning capacity has become
irrelevant if it is not proven that one utilised one’s earning capacity for oneself.
“The Dippenaar doctrine may perpetuate the prevailing dualism of proclaiming that the loss is
one of earning capacity while in fact awarding damages for loss of future earnings” (Boberg
539).’
5
[16] In Southern Insurance Association 6 the Appellate Division held that where
mathematical precision is impossible, the court must make an estimate based on
probabilities and ‘ rough justice’. Similarly, in Road Accident Fund v Guedes, 7 the
Supreme Court of Appeal confirmed that loss of earning capacity involves a comparison
between hypothetical scenarios and cannot be calculated with certainty. The principle
that a plaintiff should not be prejudiced by the inherent difficulty of proving patrimonial
loss was further affirmed in Hersman v Shapiro & Co:
8
loss was further affirmed in Hersman v Shapiro & Co:
8
‘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.’
5 Ibid at 241.
6 Footnote 6. Hersman v Shapiro & Co 1926 TPD 367 at 379.
7 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) para 9.
8 Footnote 10 at 379. Also see Road Accident Fund v Kerridge [2018] ZASCA 151; 2019 (2) SA 233
(SCA) (Kerridge) para 25.
9
The Court is thus entitled to rely on circumstantial evidence and expert opinion, and to
exercise its discretion to arrive at a fair and equitable assessment, rather than insisting
upon unattainable precision.
Evaluation
Whether a loss has been established
[17] The central difficulty with the p laintiff’s case lies in the absence of demonstrable
financial loss. The evidence reveals that:
a) The plaintiff returned to full-time work shortly after the accident.
b) He continues to operate his business successfully; and
c) his income has increased substantially since the accident.
The Plaintiff’s income is primarily derived from ownership, management, and business
expansion, rather than direct physical labour.
[18] The evidence further demonstrates that the growth of the business is closely
linked to capital investment received prior to the accident and subsequent expansion of
operations. On a proper conspectus of the evidence, the p laintiff’s post-accident
financial trajectory does not support a finding that he is worse off. The alleged loss is
therefore not borne out by the facts, but rests largely on hypothetical projections of what
might have occurred in the absence of the accident.
Causation
[19] Even if some degree of physical limitation is accepted, the p laintiff has failed to
establish a causal nexus between the accident and any alleged financial loss. The
evidence indicates that the business would likely have expanded irrespective of the
accident. The plaintiff’s role would, in any event, have evolved toward management and
supervision; and i ncome growth is attributable to capital investment and business
acumen. In these circumstances, any alleged shortfall cannot, on a balance of
probabilities, be attributed to the accident.
Contingencies and Actuarial Calculations
10
[20] The actuarial calculations presented are premised on uncertain and inconsistent
pre-morbid income figures. There are material discrepancies in the p laintiff’s reported
income, with no reliable documentary corroboration.
[21] This Court must therefore approach the pre- morbid scenario with caution and
apply appropriate contingencies. When realistic contingencies are applied, the
calculations demonstrate that no loss arises. Only in a narrowly constructed scenario,
involving relatively favourable assumptions to the p laintiff, does a residual loss of R 167
973.75 emerge as was correctly depicted by counsel for the defendant in her heads of
argument.
[22] While the defendant contends that no loss has been proven, this Court is mindful
that the p laintiff has sustained injuries which may, to a limited extent, affect efficiency
and future resilience in the labour market. In such circumstances, courts have
recognised that a modest award may be justified to account for a reduced earning
capacity, even where actual loss is difficult to quantify with precision.
Conclusion and Order
[23] The plaintiff has not established a clear, quantifiable loss of earnings on a
balance of probabilities. However, doing the best it can on the available evidence, and
adopting a cautious approach, this Court is satisfied that a limited award is appropriate
to reflect a marginal diminution in earning capacity. The amount of R 167 973.75
represents a fair and reasonable assessment in the circumstances.
[24] I accordingly make the following order:
1 This order is in addition to the order dated the 17
th of March 2026 under the
above case number.
2 The defendant is ordered to pay the plaintiff the amount of R167 973.75 (ONE
HUNDRED AND SIXTY SEVEN THOUSAND NINE HUNDRED AND SEVENTY
THREE RAND AND SEVENTY FIVE CENTS)
in respect of the plaintiff’s claim for past
and future loss of earnings and earnings capacity resulting from injuries sustained by
and future loss of earnings and earnings capacity resulting from injuries sustained by
the plaintiff in a motor vehicle accident which occurred on the 8
th of June 2018, which
11
amount is payable by the defendant to the plaintiff within 14 (fourteen) calendar days
from date of service of this order by depositing same into the plaintiff’s attorneys of
record’s trust account, the details of which are as follows:
ACCOUNT HOLDER: AS BOSMAN ATTORNEYS
BANK: FIRST NATIONAL BANK
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 6[…]
BRANCH: BROOKLYN
BRANCH CODE: 251345
REFERENCE: AB/JN/R086
3 Should the defendant fail to make payment of the capital amount within 14
(fourteen) calendar days from date of service of this order, the defendant will be liable
for interest on the amount due to the plaintiff at the prescribed statutory rate per annum
as from the date of this order to date of final payment.
4 The defendant is ordered to pay the plaintiff’s taxed or agreed party and party
costs on the High Court scale, which costs will be subject to the discretion of the Taxing
Master and will include but not be limited to, the following:
4.1 The reasonable qualifying fees of the following experts:
4.1.1 Dr K Sikhauli (Orthopaedic Surgeon).
4.1.2 Ms S Botha (Occupational Therapist).
4.1.3 Dr J Erasmus (Industrial Psychologist).
4.1.4 Mr N Waisberg (Actuary).
4.2 The costs of the plaintiff ’s counsel (Adv PJ Vermeulen SC), including counsel’s
day fee for 17
th of March 2026, on Scale C.
5 Plaintiff is ordered to serve the notice of taxation of the plaintiff’s party and party
bill of costs on the defendant.
6 The defendant is ordered to pay the plaintiff’s taxed and/or agreed party and
12
party costs within 14 (fourteen) calendar days from the date upon which the accounts
are taxed by the Taxing Master and/or agreed between the parties.
7 Should the defendant fail to make payment of the taxed and/or agreed party and
party costs amount within 14 (fourteen) calendar days from date of this taxation and/or
settlement, the defendant will be liable for interest on the amount due to the plaintiff at
the prescribed statutory rate per annum as from the date of this taxation and/or
settlement to date of final payment.
______________________________
M L OPPERMAN
JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: P Vermeulen SC
Instructed by: Bosman Attorneys
Pretoria
c/o Webbers Attorneys
Bloemfontein
For the defendant: J Gouws
Office of the State Attorney
Bloemfontein