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green traffic light and turned into the plaintiff’s path. The plaintiff sustained a
fractured right patella and a fractured left ankle, requiring open reduction and
internal fixation surgeries. He was hospitalised for six days, and he avers that since
then he suffers from a chronic pain, functional limitations, and reduced earning
capacity.
[2] The defendant was served with the combined summons on 16 April 2025 but
failed to enter an appearance to defend. The plaintiff now seeks default judgment
against the defendant , supported by expert reports from an orthopaedic surgeon,
occupational therapist, industrial psychologist, and actuary.
Merits and liability
[3] The plaintiff’s version of the accident is set out in his affidavit and the particulars
of claim. On 3 November 2023, he rode his motorbike south on Draysdale Avenue
when the insured driver’s car was travelling north turned right into Douglas Road
without yielding, colliding with him. It appears that the insured driver failed to
keep a proper lookout, failed to yield at the green traffic light, and turned into the
plaintiff’s path. No contrary evidence has been placed before the court.
[4] I find that the sole cause of the accident was the negligence of the insured driver.
The defendant is accordingly liable for 100% of the plaintiff’s proven or agreed
damages in relation to an accident that occurred on 03 November 2023.
General damages
[5] The plaintiff initially claimed an amount of R1 000 000.00 for general damages.
However, at the hearing of the matter, the plaintiff did not persist with the claim
for general damages. The plaintiff accepted that the case for general damages is
not ripe for adjudication, as the defendant has not yet assessed the seriousness of
the injuries under the narrative test, and the matter has not yet been referred to the
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Health Professions Council of South Africa (“HPCSA”). For this reason, the issue
of general damages is referred to the HPCSA for determination.
Loss of earnings
[6] The plaintiff’s claim for loss of earnings is supported by four expert reports . Dr
Hadebe, an orthopaedic surgeon, confirmed fractures of the right patella and left
ankle, with a non‑union of the right patella and residual pain and with the whole
person impairment (WPI) of 18%. Dr Hadebe is of the view that the plaintiff
qualifies under the narrative test for serious long‑term impairment or loss of body
function.
[7] Mr Nemakanga, an occupational therapist , assessed the plaintiff’s physical
capacity as falling within the light to medium strength demand category. He is of
the view that the plaintiff will need to alternate sitting and standing, and his
competitiveness in the open labour market is negatively affected.
[8] Ms Christina Badalani , an industrial psychologist , concluded that before the
accident the plaintiff (who held multiple diplomas and was a project controller
earning R144 000.00 per annum) would likely have progressed to the upper
quartile of Paterson C3 by age 45. After the accident he is unable to perform his
pre‑accident duties and now works as a receptionist with difficulty. She is of the
opinion that h is career ceiling is reduced to the median of Paterson C3, with a
corresponding loss of earnings.
[9] An actuary report by Mr Namir Waisberg calculated the capitalized present value
of past and future loss of earnings under two contingency scenarios: 5% / 15% and
5% / 10% (past / future). In scenario 1.1 (5% / 15% future contingency on the
uninjured scenario and 5% / 20% on the injured scenario) the total loss of earnings
was R2 052 455.00. In scenario 1.2 (5% / 15% uninjured and 5% / 25% injured)
the loss was R2 550 453.00.
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[10] In his heads of argument, the plaintiff sought R2 550 453.00 for loss of earnings.
However, during oral argument, counsel for the plaintiff conceded that the court
has a discretion to apply contingency deductions different from that of the actuary
where the evidence shows increased vulnerabilities.
[11] I have carefully considered the expert evidence. The orthopaedic surgeon confirms
a non‑union of the patella – a permanent, painful condition. The occupational
therapist placed the plaintiff in the light strength demand category, a significant
reduction from the medium to heavy demands required for project management.
The industrial psychologist notes that the plaintiff is now “an unequal competitor
in the open labour market” and will require an accommodating employer.
[12] I am mindful that in Road Accident Fund v Guedes1, the Supreme Court of Appeal
confirmed that contingency deductions are a matter for the court’s discretion,
based on the facts of each case. Where the plaintiff’s residual earning capacity is
fragile because of chronic pain, reduced physical function, and the need for
ongoing medical treatment, a higher contingency against the “having regard to the
accident” scenario is justified. The court in Southern Insurance Association Ltd v
Bailey NO2 held:
“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. ” (Emphasis
added)
1 2006 (5) SA 583 (SCA).
2 1984 (1) SA 98 (A).
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[13] Here, the plaintiff’s post‑accident career is precarious. He works as a receptionist
(a sedentary role) but already struggles with prolonged standing, walking, and cold
weather. His manager said he is “limited in movement”. Orthopaedic surgeon
notes that the non‑united patella may cause ongoing pain and functional limitation.
There is a real risk of future unemployment, under‑employment, or early exit from
the labour market. A standard 20% or 25% contingency for the injured sc enario
does not adequately refl ect these risks. I am therefore of the view that a n
appropriate contingency spread should be applied.
[14] In the circumstances, the application of a 15% contingency deduction on both the
uninjured and injured future earnings is reasonable and fair. This is a more
conservative approach than the 20 % / 25% often applied in serious injury cases,
but it appropriately recogni zes both the plaintiff’s youth and the significant
residual disabilities resulted by the accident.
[15] Using the actuary ’s scenario 1.1, which I accept as the correct base calculation ,
and which applies 5% contingency on uninjured and 5% on injured for past loss,
and 15% on uninjured and 20% on injured for future loss, I am of the view that
the appropriate contingency deduction is a 15% contingency on uninjured future
earnings and 15% on injured future earnings.
[16] The actuary’s gross accruals (before contingency) in scenario 1.1 are:
Uninjured future earnings: R11 712 205.00
Injured future earnings: R9 959 956.00
[17] Applying 15% contingency to both:
Uninjured after 15% contingency: R11 712 205.00 x 85% = R9 955 374.25
Injured after 15% contingency: R9 959 956.00 x 85% = R8 465 962.60
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[18] Future loss after 15% / 15% contingency: R9 955 374.25 – R8 465 962.60 = R1
489 411.65.
[19] Past loss (no change, as 5% contingency on both already applied in scenario 1.1):
R65 046.00. Total loss of earnings: R65 046.00 + R1 489 411.65 = R1 554 457.65.
[20] The plaintiff argued that an amount of R2 550 453.00 be awarded to him based on
scenario 1.2. However, the court is not bound by the plaintiff’s submissions where
the evidence supports a different calculation. I t cannot be gainsaid that although
the plaintiff is entitled to claim a specified amount, the court must award damages
based on the evidence. The recalculation above is more conservative and
appropriately reflects the application of 15% contingencies on both sides.
[21] In the circumstances, I award the amount of R1 554 457.65 to the plaintiff. This
amount is within the range of a proper exercise of discretion given the
contingencies that I have found to be justified.
Future medical expenses
[22] The plaintiff seeks an order for an undertaking in terms of section 17(4)(a) of the
Road Accident Fund Act 56 of 1996 for 100% of the costs of future
accommodation in a hospital or nursing home, or treatment, or the rendering of a
service, or the supplying of goods to the plaintiff arising from the injuries
sustained in the accident, after such costs have been incurred and upon proof
thereof.
[23] Dr Hadebe estimates the cost of future medical consultations and pain medication
at R5 000 per annum for life. I see no reason not to grant this order in light of the
finding I made in respect of the liability of the defendant.
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Contingency fee agreement
[24] The contingency fee agreement entered into between the plaintiff and his attorney
is declared valid. This is consistent with the Contingency Fees Act 66 of 1997.
Rule 38(2) application
[25] The plaintiff filed an application in terms of Rule 38(2) to admit the expert reports
on affidavits. Given that the defendant failed to defend, it is reasonable and cost
effective to admit the evidence as contained in the affidavits. The order in this
regard was granted on 18 March 2026 and is confirmed.
Costs and interest
[26] The defendant shall pay the plaintiff’s taxed or agreed party and party costs on the
High Court scale B, including the wasted costs of 17 March 2026. The interest on
the capital amount of R1 554 457.65 shall accrue at 10.5% per annum if the
amount is not paid within 180 days, calculated from the expiry of 14 days after the
due date to the date of payment. Interest on costs shall accrue at 10.5% per annum
from the date of the allocator to the date of payment.
Order
[27] Accordingly, I make the following order:
(1) An application in terms of Rule 38(2) is granted.
(2) The defendant shall be liable 100% of agreed or proven damages of
the plaintiff related to the accident that occurred on 03 November
2023.
(3) The defendant shall pay to the plaintiff a total amount of R 1 554
457.65 (One Million Five Hundred and Fifty Four Thousand Four
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Hundred and Fifty Seven Rand and Sixty-Five Cents) in respect of
loss of earnings within 180 days from the date of this order.
(4) In the event the aforesaid amount in paragraph 3 above is not paid
timeously, the defendant shall be liable for interest on the amount at
the rate of 10.5% per annum calculated from the expiry of 14 days to
the date of payment.
(5) The defendant is ordered to furnish the plaintiff with an undertaking
in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996
to pay 100% for the costs of the plaintiff’s future accommodation in a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods to him arising out of the injuries sustained by the
plaintiff and the sequelae thereof in the motor accident which occurred
on 3 N ovember 2023 after such costs have been incurred and upon
proof thereof.
(6) The defendant shall pay the plaintiff’s taxed or agreed party and party
costs on scale B, including the costs of 17 March 2026, and for the
costs referred to in paragraphs below and subject thereto that , in the
event the costs are not agreed:
6.1. The plaintiff shall serve the notice of taxation on the defendant’s
attorney of record.
6.2. The plaintiff shall allow the defendant 30 (thirty) court days to
make payment of the taxed costs.
6.2.1. Should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the rate of 10.5% per annum on
the taxed or agreed costs from the date of the allocator to the
date of payment.
6.3. Such costs shall include, as allowed by the taxing master:
6.3.1. The costs of and consequent to the appointment of counsel, as
well as the reasonable preparation fees for default judgment
trial, drafting of heads of argument and attendance for default
judgment trial on 17 March 2026, on scale B.