1
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 16634/2020
In the matter between:
SAKEENA NORDIEN Plaintiff
and
ROAD ACCIDENT FUND Defendant
Neutral citation: Nordien v Road Accident Fund Case No 16634/2020 [2026]
ZAWCHC (21-05-2026)
Coram : MAPOMA, AJ
Heard : 28 August 2025, 05 November 2025 and 5 March 2026
Judgment : 21 May 2026
2
Summary : Delict - action for damages – personal injuries – plaintiff
claiming for injuries sustained as a result of a motor vehicle accident –merits
and general damages settled - quantum to be determined – parameters to be
used in calculating loss of earnings - contingency deduction to be applied
determined
ORDER
1. The Defendant is liable to pay the Plaintiff the total sum of R 5 745 890
(Five Million Seven Hundred and Forty-Five Thousand Eight Hundred and
Ninety Rand) for past and future loss of income, plus costs in terms of the
amended order marked “X” attached hereto.
JUDGMENT
MAPOMA, AJ
[1] The plaintiff sued the defendant, the Road Accident Fund (RAF) , in terms
of the Road Accident Fund Act 56 of 1996 as amended (the Act), for damages
arising from bodily and psychological injuries she sustained, emanating from a
motor vehicle collision that occurred on 3 May 2019.
[2] On the fateful day, at about 19h50, at or near Old Paarl Road, Kraaifontein,
Western Cape, a coll ision occurred when the motor vehicle driven by the
insured driver collided with the motor vehicle in which the plaintiff was
3
conveyed as a passenger, which in turn collided with another motor vehicle .
Following the accident , the plaintiff was taken to and admitted at M elomed
Hospital in Bellville, where she was assessed and her injuries were treated.
[3] As a direct consequence of the accident, which the plaintiff attribute s to the
negligent driving of the insured driver of the insured motor vehicle, the plaintiff
suffered bodily injuries. These injuries were followed by a diagnosis of post-
accident p sychological consequences. These injuries include severe facial
lacerations and fractures of the facial bones, head injuries, soft tissue injuries to
the neck and injury to the thora co-lumber spine. Soon after the accident , t he
plaintiff suffered a miscarriage after 8 weeks of pregnancy.
[4] The defendant conceded merits and accepted liability at 100% for the
plaintiff’s proven or agreed damages . The defendant further accepted the
plaintiff’s entitlement to receive statutory undertaking s in terms of section
17(4)(a) of the Act in respect of her future hospital and medical expenses. The
parties also settled the claim for general damages . Thus, the only issue for
determination by the Court is quantum as it relates to past and future loss of
earnings.
[5] At the commencement of the trial , the Court, upon unopposed application
by the plaintiff, granted an order in terms of Rule 38(2) of the Uniform Rules of
Court, allowing for the evidence of some of the plaintiff’s medical experts and
actuary to be admitted by way of affidavits. Consequently, the evidence of Dr R
Jaffe, the orthopaedic Surgeon; Kingsbury Radiologists, the radiologist s;
Professor T Zabow, the psychiatrist; Dr M Ostrofsky, the maxilla-facial and oral
surgeon; Marlene Joubert , the o ccupational therapist, and Munro F orensic
Actuaries, the actuary was admitted into evidence by way of affidavits.
4
[6] The evidence of the industrial psychologists for both parties was led orally,
pursuant to the ir respective medico-legal reports . In this regard, the plaintiff
called the earnings specialist Mr Jean Beeldes (Mr Beeldes), and the defendant
called Ms Sandra Moses (Ms Moses), both of whom testified. The evidence of
these witnesses was foreshadowed by their joint minute that they concluded on
3 April 2023. The plaintiff herself testified, while there were no other witnesses
for the defendant other than Ms Moses.
[7] It is not in dispute that , as a result of the collision , the plaintiff suffered the
following injuries: i) the head injury with no loss of consciousness ; ii) severe
facial injuries with lacerations as well as fractures of the facial nasal and orbital
bones; iii) permanent facial disfigurement; iv) a soft tissue injury to the cervical
and tho raco-lumbar spine , with damage to the intervertebral discs ; and v)
psychological injuries consisting of depression , anxiety, and post-traumatic
stress disorder (PTSD).
[8] The central issue was whether the plaintiff was so severely impacted upon
by the injuries sustained as a result of the accident that she suffered loss of
earnings. The defendant contended that the plaintiff’s job loss was not caused
by the injuries sustained as a result of the accident , and that , in any event , she
was employable. The defendant further submitted that the plaintiff did not suffer
any loss of income, and consequently , her claim for loss of earnings should be
dismissed.
[9] To buttress its stance mentioned above , the defendant contend ed that the
expert reports support its version that medical interventions would alleviate the
plaintiff’s symptoms and that the plaintiff did not do enough to mitigate the loss
by seeking employment. The defendant further contends that the plaintiff’s
5
career progression would still have been achievable had she attended to the
injuries through medical interventions . The defendant also disputes that the
plaintiff’s loss of employment is causally connected to the accident.
[10] Thus, the Court is called upon to determine the earning parameters and the
contingency to be applied to the pre -morbid and post -morbid future loss of
income calculation in respect of the plaintiff’s claim. In approaching this issue,
the Court will determine the amount s to be used for the past and future loss,
from which the deductions of contingencies are to be made once the Court
determines the appropriate contingency to be applied.
Evidence
[11] During trial, the plaintiff gave evidence where she confirmed the injuries
mentioned above. She also testified that she experiences constant pains due to
the facial and nasal injuries and is reactive to smells ; lives on medication for
severe headaches and bodily pains ; feels exhausted in the morning due to lack
of breath ; and suffers backpain that limits her sitting on the computer to
between 30 minutes and an hour. She also testified that she was psychologically
affected by the accident, including incurring cognitive problems that impact her
ability to cope in the labour market.
[12] The plaintiff is now 36 years of age , having been born on 6 July 1989. At
the time of the accident, she was 29 years of age and employed by Amazon, a
global e-commerce retailer in the business of buying and selling goods through
digital platforms. At the time of the accident, the plaintiff was employed as a
subject matter ex pert and a mentor. She was shortlisted for migration to
Amazon Web Services (AWS) but could not be interviewed due to her sick
6
condition at the time. She was retrenched on 17 May 2019 and is now
unemployed.
[13] Regarding her career, the plaintiff testified that she has a Grade 12
qualification and enjoyed working prior to the accident with nothing negatively
affecting her career path. She started work ing in customer care in the financial
services sector in 2008 until 2013 . In 2014 , she joined Amazon and assumed
various specialised positions that included seller support associate and
progressed to subject matter expert . In 2016, she obtained certification as a
mentor role model trainer. She testified that but for the accident, she would have
been rehired by AWS given her career progression path.
[14] Under cross examination, the defendant challenged the plaintiff’s inability
to do productive work due to constant pains. It was also put to her that she could
have utilised the physiotherapists to alleviate the pain. It was also put to her that
she was unemployed because she never actively sought employment. It was also
challenged that her unemployment status was a result of the accident but rather
because Amazon had to move to AWS , and she failed to apply for employment
there. The plaintiff insisted that had she not suffered injuries, there was a 90%
chance that she would have been absorbed by AWS as an employee.
[15] In my view, the plaintiff came across as a credible witness. Her evidence in
giving account of the accident and the injuries she sustained , as well as he r
career progression was clear and consistent. She was p repared to make
concessions where warranted and did not pontificate or profess to know what
she did not know. Furthermore, I did not get an impression that she was
exaggerating the impact of the injuries she had suffered. I also take note that her
7
description of the pains she feels as a result of the injuries is subjective, as it
cannot be assailed.
[16] Dr R Jaffe, the Orthopaedic Surgeon (Dr Jaffe) who assessed the plaintiff,
reported that persistent pain in the face is attributable to the severe maxillofacial
fractures she suffered. He opines that these injuries constitute serious injuries.
Dr Jaffe also reported that the plaintiff experiences severe occipital headaches,
with stiffness in the cervical spine and numbness in both hands. These ,
according to Dr J affe, are resultant from movement of the cervical spine and
lumbar spine which elicit pain as result of soft tissue injury to the cervical spine
and damage to the intervertebral disc . Dr Jaffe concludes that the plaintiff will
have to undergo a spinal fusion if there is a significant disc prolapse.
[17] Regarding future employability, Dr J affe opines that the plaintiff would
have difficulty performing the administrative functions due to impairment and
limited ability to perform sustained work and , as such, will require an
accommodating employer who would allow her to work at her own pace and
with afforded rest breaks, which will naturally reduce her productivity.
[18] Dr Onstrofsky, the Maxillo-facial and Oral Surgeon (Dr Onstrofsky) who
also assessed the plaintiff , noted visible scars over the bridge of the plaintiff’s
nose to the right cheek. Dr Onstrofsky diagnosed a decreased sensation in the
right infra-orbital nerve with reduced vision in the right eye. According to Dr
Onstrofsky, the X-rays taken indicate a malunited fracture in the nasal bone and
possible fracture on the right orbital fracture.
[19] The plaintiff was also assessed by an Occupational Psychologist, Merlene
Joubert (Ms Joubert), in relation to the impact of her injuries on her daily living,
8
leisure, recreation, and work activities. Apart from the physical injuries , which
include constant neck and back pains, headaches, and the inability to sleep, the
injuries had psychological effect s on her self -esteem, including being self -
conscious about her disfigured face as a result of the accident.
[20] Ms Joubert further reported that following the accident, the plaintiff’s
executive functioning was below industry norm for contemporary workers in
professional occupations, which has compromised her capacity to perform at the
level of Technical Accounts Manager as before the accident . According to Ms
Joubert’s opinion, her residual capacity is also compromised as she cannot
perform sedentary demand work , lacks capacity to perform medium work , and
has reduced ability to perform light work. Ms Joubert concludes that, based on
her continued symptoms, especially her dysfunctional psychological condition,
the plaintiff is currently unemployable.
[21] Professor T Zabow (Professor Zabow), the psychiatrist, also assessed the
plaintiff for medico -legal purposes. Professor Zabow noted , inter alia , the
physical symptoms mentioned above and also reported the plaintiff’s sinus
problems and difficulty in breathing due to a deviating nasal septum. She opines
on the psychiatric symptoms and behavoural changes that include irritability,
anxiety, anger, loss of confidence and self -esteem. She also notes that the
plaintiff’s mind remains preoccupied with the accident and its consequences to
her life. She concludes that the plaintiff is suffering from dysthymic mood
disorder and chronic post-traumatic stress disorder (PTSD).
[22] Professor Zabow also opines that most of her suffering is from a severe
long term mental and behavioural disorder. This, according to Professor Zabow,
is attributable to a major loss of amenities of life, loss of work and recreational
9
activities, and reduced quality of life on the part of the plaintiff . S he the n
suggests that the plaintiff needs counselling and psychotherapy intervention.
[23] Regarding the injuries sustained, t he defendant did not submit any expert
reports, nor did it call any other experts to testify. Based on the expert evidence
contained in the medico-legal reports that have been submitted , I am satisfied
that the pl aintiff has suffered serious injuries that had serious impact on her
physical being and psychological state. I am also satisfied that the serious
injuries suffered by the plaintiff resulted in her compromised ability get
employment. I am also however to some extent persuaded by the defendant’s
argument that the plaintiff cannot be said to be totally unemployable
notwithstanding the injuries. In my view, this issue should have an effect on the
contingencies to be applied.
Loss of Earnings
[24] The plaintiff led evidence of Mr Beeldes, the earnings specialist who
assessed her to determine the impact of the accident on her employability and
earnings. The defendant also led evidence of Ms Moses, the industrial
psychologist. Both experts prepared medico -legal reports that were placed
before court , and both testified orally conforming their respective reports .,
These experts also prepared a joint minute that was submitted.
[25] Ms Moses made a number of profound concessions regarding her
postulations on the plaintiff’s earnings. S he con ceded that her postulations in
the joint minute that the plaintiff would have peaked but Patterson B5 upper
quartile at the age of 45 ye ars was not realistic given that she was already
employed at Paterson B 5 level at the time of the accident. She then accepted
10
that Mr Beeldes’ pre-morbid postulation that the plaintiff would have been able
to progress to a Paterson C-upper level was a reasonable postulation.
[26] The Court also notes that whilst the views of Ms Moses expressed in her
medical legal report and joint minute differ from those of Mr Beeldes regarding
the plaintiff ’s loss of earnings , Ms Moses conceded during cross -examination
that the pre-morbid and post-morbid postulated by Mr Beeldes were reasonable.
The Court is therefore persuaded to accept the pre -morbid and post-morbid
postulations of Mr Beeldes for the purposes of calculating the plaintiff’s loss of
earnings.
Actuarial Report
[27] The postulations of Mr Beeldes were reportedly submitted by the plaintiff
to be used by Munro Forensic Actuari es to make calculations and apply the
contingencies proposed by the plaintiff. Munro Forensic Actuaries prepared an
actuarial report that was introduced by the plaintiff into evidence. The defendant
did not submit any actuarial report.
Contingencies
[28] The plaintiff introduced the actuarial report authored by Munro Forensic
Actuarial dated 10 July 2025, which made calculations based on the pre -morbid
and post -morbid scenarios that were postulated in Mr Beeldes’ report. In the
actuarial report, the plaintiff proposed contingency deductions of 5% and 10%
on the plaintiff’s past and future uninjured income respectively. The report also
proposed that a higher -than-normal contingency deduction of 55% be applied
on plaintiff’s future injured income.
11
[29] Applying the contingencies mentioned above, the calculations in the actual
report suggested that the plaintiff has suffered a net past loss of income of
R1 548 300.00 and will suffer another future loss of income of R7 294 900.00,
which amounts to a total net loss of income of R8 843 200.00.
[30] Regrettably, the defendant did not propose any contingencies to be applied
to the calculations . Instead, the defendant referred the court to decision of
Southern Assurance Association Ltd v Bailey NO,1 where the court held that the
inquiry into the damages for loss of earning capacity is , by its very nature ,
speculative, and that the court has two option, namely, making a round estimate
of an amount which it deems to be fair and reasonable, which is entirety a guess
work, or to make an assessment by way of mathematic al calculations. The
defendant argued for the guess work approach.
[31] The Court is dis inclined to follow the approach proposed by the defendant
in light of the expert evidence of the respective industrial psychologist s and
earning experts that have been placed before Court, and mathematical
calculations by actuarial experts. In my view, where there is such evidence
which has been introduced by the respective parties with a view to opining on
the loss of earnings, it would not be justified for the court to adopt a thumb suck
approach, for that would undermine the value of experts who have been called
to assist the Court.
[32] In Road Accident Fund v Kerridge , 2 the Supreme Court of Appeal (SCA)
confirmed that any claim for future loss of earning capacity requires a
comparison of what a claimant would have earned had the accident not
occurred, with what a claimant is likely to earn now that the claimant has
1 1984 (1) SA 98 (A) 112E-114F.
2 2019 (2) SA 233 (SCA) para 40-44.
Formatted: Italian (Italy)
Formatted: Italian (Italy)
Field Code Changed
Formatted: Italian (Italy)
Formatted: Italian (Italy)
12
injuries post -accident. The loss is the impact of the accident on the claimant,
this being the difference between the monetary values of earning capacity
immediately prior to the injury and immediately thereafter.
[33] The Court is inclined to make assessment of loss of earnings using the
assumptions made by the expert opinions. However, the Court will not blindly
follow without questioning and performing a balancing act that ensures
calculations are reasonably in line with what is reasonable. In Terblanche v
Road Accident Fund ,3 the court held that even though factually based
calculations should be preferred over the court’s blind guess, the court still has
at its disposal contingencies as a levelling instrument to ensure that the
calculations are reasonably in line with the probabilities of the plaintiff’s special
circumstances.
[34] The court made reference to contingencies as matters which cannot
otherwise be provided for or cannot be calculated exactly, but which may
impact upon the damages claimed . They include any possible relevant future
event which might cause damage or which may otherwise influence the extent
of the plaintiff’s damage.
[35] The above notwithstanding, the Court is mindful that contingencies are
arbitrary and also highly subjective. This view was postulated in the often-
quoted passage in Goodall v President Insurance Co Ltd,4 where the court said:
‘In the assessment of a proper allowance for contingencies, arbitrary considerations
must inevitably play a part, for the art or science of foretelling the future, so confidently
practiced by ancient prophets and soothsayers, and by authors of a certain type of
almanack, is not numbered among the qualifications for judicial office.’
3 (9271/2018) [2024] ZAGPPHC 1156 (7 November 2024) para 35.
4 1978 (1) SA 389 (W) at 392H-393A.
13
[36] Noting the above , the court will exercise its discretion judiciously and
decide as to what is fair and reasonable in the circumstances of a particular case.
In doing so, the Court will have to make a fair determination of the appropriate
contingencies to be applied based on the particular facts in this case. , It is also
trite that the Court can deviate from normal contingencies in circumstances
where they are not appropriate. In this regard, the court has a wide discretion
and may deviate from the normal contingencies to arrive at the most appropriate
ones to be applied , based on the relevant factors and uncertainties to be
provided for.
[37] In the determination of the appropriate contingency deduction to the past
uninjured scenario in this case, there is serious disagreement between the
earnings specialist called by the plaintiff and the industrial psychologist called
by the defendant . Whilst the Court appreciates the concessions made by Ms
Moses in favour of Mr Beeldes in this regard, the uncertainty remains wide and
this cannot be downplayed. My view is fortified by the fact that the actuarial
calculations of the plaintiff’s past earnings are based purely on Mr Beeldes
alone. It cannot be sustainable to rely on the calculations as absolute, more so
when juxtaposed with those of Ms Moses.
[38] The fact that the defendant did not make submissions on the contingency
deductions is lamentable. Mindful of the uncertainties mentioned above ,
counsel for the plaintiff conceded, wisely in my view , that it would be
reasonable to increase the contingency deduction from the proposed 5% to 20%
on the uninjured past s cenario. In my view , a contingency deduction of 30% is
reasonable in this regard.
14
[39] Regarding future loss of income, i n their evidence both experts conclude
that the plaintiff is not unemployable, for they agree that medical interventions
may improve her condition to be able to be employed, provided that this would
be at a low er level than where she was , and this would require a sympathetic
employer. Based on this evidence the plaintiff’s chances of re -employment are
high if the medical interventions are implemented , a more aggressive
contingency deduction than the proposed is warranted. Thus, I consider a 35%
contingency deduction on the future uninjured scenario reasonable.
[40] Regarding the future injured scenario, the plaintiff proposed a higher-than-
normal deduction of 55%. I am not persuaded that a higher contingency in the
magnitude of 55% is justified in the circumstances of this case. In my view , a
contingency deduction of 20% on the future injured scenario is reasonable.
[41] In s ummary, the Court takes a view that the reasonable contingency
deduction to be applied on the past uninjured income is 30%. The contingency
deduction to be applied on the future uninjured income is 35%, and 20% for the
future injured state.
[42] Applying the amount s determined as appropriate loss of earnings
parameters and the contingencies , the Court has arrived at the loss of earnings
as follows:
Uninjured
Earnings
Injured
Earnings
Net Loss
Past Earnings 1 703 700 18 700
Less contingency deduction 30% 0%
Net Value of Post Income 1 192 590 18 700 1 173 890
15
Value of future income 8 937 600 1 546 800
Less Contingency deduction 35% 20%
Net Value of Future Income 5 809 440 1 237 440 4 572 000
TOTAL LOSS OF EARNINGS 5 745 890
[43] The Court has also considered that the cap stipulated in the Road Accident
Fund Amendment Act 19 of 2005 (the RAF Amendment Act cap) does not
apply in this case. Thus, applying the abovementioned contingency deductions,
the net past loss of income awarded results in the amount of R1 173 890.00. The
net future loss of income is R4 572 000.00. This amount s to a total net loss of
income of R5 745 890.00.
Costs
[44] Regarding costs, it is an established principle that costs follow the results. I
find no reason to deviate from this principle in this case . The plaintiff has
succeeded in her claim and is therefore entitled to an award of costs on a party
and party scale.
[45] In terms of Rule 67A of the Uniform Rules of Court, counsels’ fees in the
context of a party and party costs in the High Court are awarded on the Scales
A, B, and C as the case may be, depending on a number of factors set out in
Rule 67A (3). Such factors include the complexity of the matter, value of the
claim, importance of the relief sought and any other relevant factors.
[46] It was argued on behalf of the defendant that this matter is not compl ex,
and accordingly, costs at scale C were not warranted. It was thus submitted that
costs should be awarded at scale B. I have considered the defendant’s
submission in this regard, and having done so, I am not persuaded by the
16
argument. I do not share the view that the matter is not compl ex, and the
amount in dispute, amongst other things, is self-explanatory.
[47] It is the Court’s view that Scale C is warranted in this case, based on the
factual and legal complexity of the matter , necessitated by the absence of
settlement on the matter which was fiercely defended . Inevitably, incidental
skills are required to be applied by a legal professional senior enough to assist in
resolving the matter . The value of the claim is substantial. The Court is
satisfied that an award of counsel’s fees on the High Court Scale C is justified
in the circumstances.
Order
[48] In the result, the following order is made:
1. The Defendant is liable to pay the Plaintiff the total sum of R5 745
890 (Five Million Seven Hundred and Forty-Five Thousand Eight
Hundred and Ninety Rand) for past and future loss of income, plus
costs in terms of the amended order marked “X” attached hereto.
_______________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
17
Appearances
Counsel for the Plaintiff : Adv W Coughlan
Instructed by : DSC Attorneys, Cape Town
Counsel for the Respondents : Ms C Thomas
Instructed by : State Attorney, Cape Town