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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: 3861/2024
In the matter between:
RABELE NGOBANI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Ngobeni v Road Accident Fund (3861/2024) [2026]
ZAFSHC 298 (18 May 2026)
Coram: DEANE AJ
Heard: 24 March 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The time and date for
hand-down is deemed to be 10h00 on 18 May 2026.
Summary: Road Accident Fund – quantum – past loss of earnings – future
loss of earning capacity – patrimonial loss – evidentiary burden – unopposed
proceedings – s 17(4)(a) undertaking – f actual foundation requirement to establish
each head of damages – separation of issues.
ORDER
1 The defendant is liable for 100% of the plaintiff’s proven or agreed damages
arising from the motor vehicle collision which occurred on 25 January 2023.
2 The plaintiff’s claim for future loss of earnings and/or loss of earning capacity
is dismissed.
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3 The plaintiff’s claim for past loss of earnings is upheld.
4 The defendant shall pay to the plaintiff the amount of R12 355.00 in respect
of past loss of earnings.
5 The defendant shall furnish the plaintiff with a 100% undertaking in terms of
s 17(4)(a) of the Road Accident Fund Act 56 of 1996 for the costs of future
accommodation in a hospital or nursing home, treatment of or rendering of a service
or supplying of goods to the plaintiff, arising from the injuries sustained by the
plaintiff in the motor vehicle collision on 25 January 2023, after such costs have been
incurred and upon proof thereof.
6 The undertaking referred to in paragraph 5 shall be delivered to the plaintiff’s
attorneys within 30 days of the date of this order.
7 The plaintiff’s claim for general damages stands over for later determination.
8 Interest on the amount referred to in paragraph 4 shall accrue at the
prescribed rate in terms of the Prescribed Rate of Interest Act 55 of 1975, calculated
from 14 calendar days after the date of this order to date of final payment.
9 The defendant shall pay the plaintiff’s taxed or agreed party -and-party costs
reasonably incurred in relation to the issues on which the plaintiff was successful,
namely liability, past loss of earnings and the s 17(4)(a) undertaking.
10 The costs referred to in paragraph 9 shall include counsel’s fees on scale B,
to the extent allowed on taxation or agreement, and the reasonable qualifying,
preparation and report costs of expert witnesses insofar as the Taxing Master is
satisfied that such costs were reasonably necessary for the issues on which the
plaintiff was successful.
11 The defendant shall not be liable for costs incurred solely in pursuit of the
dismissed claim for future loss of earnings and/or loss of earning capacity.
12 Costs relating exclusively to the claim for general damages are reserved for
determination by the court hearing that issue.
JUDGMENT
Deane AJ
Introduction and background
JUDGMENT
Deane AJ
Introduction and background
[1] This is an action instituted against the Road Accident Fund arising from a
motor vehicle collision that occurred on 25 January 2023 at Phahameng,
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Bloemfontein. The plaintiff, who was born on 1[ …] J[…] 1992, was a pedestrian at
the time of the collision. The plaintiff’s uncontested evidence is that he was walking
on the pavement along Mophete Street when he was struck by a motor vehicle
bearing registration number H SZ[…] , driven by one H N Jacobs. The plaintiff
sustained bodily injuries as a result of the collision. The plaintiff seeks compensation
for loss of earnings, future medical expenses, and general damages.
[2] General damages are not presently before this Court. The defendant has not
accepted liability for general damages and the jurisdictional requirements for
adjudicating that head of damages have not been satisfied. That issue must
therefore stand over for later determination. The defendant initially raised two special
pleas. The first was based on alleged non- compliance with s 24 of the Road
Accident Fund Act 56 of 1996 (Road Accident Fund Act ). The second was that
summons had been issued prematurely. Both sp ecial pleas were dismissed.
Thereafter, the defendant’s legal representative withdrew from the proceedings due
to lack of further instructions.
[3] The matter consequently proceeded on an unopposed basis. That does not,
however, relieve the plaintiff of the burden of proof. The Court remains required to
evaluate the evidence placed before it and to determine whether the plaintiff has
proved the patrimonial damages claimed. The principal issue in dispute is whether
the plaintiff has proved a compensable loss of earnings. More particularly, the Court
must determine whether the plaintiff has proved not only past loss of income, but
also future loss of earnings or earning capacity.
Issues for determination
[4] The issues requiring determination are the following:
(a) whether the defendant is liable for the plaintiff’s proven damages arising
from the collision;
(b) whether the plaintiff has proved past loss of earnings;
from the collision;
(b) whether the plaintiff has proved past loss of earnings;
(c) whether the plaintiff has proved future loss of earnings or earning capacity;
(d) whether the plaintiff is entitled to an undertaking in terms of s 17(4) (a) of the
Road Accident Fund Act; and
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(e) the appropriate costs order.
[5] In relation to future loss of earnings, the Court must consider whether the
injuries and sequelae relied upon by the plaintiff have been shown to result, or to be
likely to result, in a real diminution of the plaintiff’s patrimony.
Plaintiff’s evidence
[6] The plaintiff testified in support of his claim. He described the circumstances
of the collision and the injuries he sustained. He testified that he was struck by a
motor vehicle while walking on the pavement . He testified that he was struck from
behind; his impression was that the vehicle had reversed into him . He estimated that
he was dragged or moved by the vehicle for a short distance. He further testified that
the driver later came to the hospital and apologised. The plaintiff testified that he
sustained injuries to his knees, shoulder, elbows and hands. He stated that his
knees were cut open and that he underwent treatment in theatre. He also testified
that the injury to his shoulder later resulted in numbness or pain.
[7] The plaintiff was hospitalised for a period of approximately six weeks. He
used crutches after discharge and received physiotherapy to assist with walking. He
testified that he used two crutches initially and later one crutch. He continues to take
pain medication intermittently. The plaintiff testified that he returned to work after the
accident but did not immediately resume full driving duties. He was initially used as
an assistant or co- driver and did not drive while still using crutches . The plaintiff
testified
that he had worked as a driver at DSV Logistics. His evidence was that he was
subsequently retrenched in approximately March 2025, that he was unemployed for
about three months, and that he thereafter obtained alternative employment as a
driver with another employer in approximately June or July 2025.
[8] The plaintiff testified that in his present employment he earns approximately
[8] The plaintiff testified that in his present employment he earns approximately
R8 000 to R9 000 per month, depending on hours worked, at an hourly rate of
approximately R55. He stated that although he has a Code 14 licence, he presently
drives smaller vehicles, including Code 10 vehicles. He testified that when he drives
long distances, he experiences cramps and pain and has to stretch.
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[9] No viva voce evidence was led on behalf of the defendant, and the plaintiff
was not cross- examined. The absence of cross -examination does not mean that
every inference advanced on behalf of the plaintiff must be accepted. The Court
must still determine whether the evidence proves the claim on a balance of
probabilities.
Expert evidence
[10] The plaintiff applied for the expert reports to be admitted as evidence in
terms of rule 38(2). The application was granted. The admission of the reports in this
manner does not mean that the conclusions expressed in them are binding on the
Court. The reports remain evidence to be evaluated together with the plaintiff’s oral
evidence and the objective material before the Court.
[11] Dr Makua, the general practitioner, reported that the plaintiff sustained a tear
to the left patella tendon, treated conservatively in a cast for approximately three
months. He recorded ongoing knee discomfort with mildly reduced range of
movement and multiple abrasions to the upper and lower limbs. He assessed the
plaintiff as having difficulty with prolonged standing, walking long distances and lifting
heavy objects, and calculated whole person impairment at 11%.
[12] Dr Barlin, the orthopaedic surgeon, reported injuries to the plaintiff’s left
knee, right knee and left shoulder. He recorded multiple abrasions and wounds,
including traumatic bilateral knee arthrotomies, which required surgical debridement.
The left knee was immobilised for approximately three months. He recorded a loss of
approximately 20% flexibility in the left knee and noted scarring to the shoulder and
knees. His opinion that the plaintiff qualifies under the narrative test is relevant to
general damages, which are not before this Court.
[13] Dr Da Costa assessed the plaintiff’s psychological functioning and
diagnosed moderate depression, severe anxiety and post -traumatic stress disorder.
She recommended future psychotherapy comprising fifteen sessions. She expressed
She recommended future psychotherapy comprising fifteen sessions. She expressed
the view that the plaintiff may struggle to secure employment in the open labour
market should he become unemployed, particularly in the absence of
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accommodation by a sympathetic employer.
[14] Dr Alpine, the aesthetic specialist, described scarring to the plaintiff’s left
shoulder, upper back, left thigh and both knees. She opined that surgical revision of
the scars would not be possible. She expressed the view that scarring can have
long-term emotional consequences and may affect employability because of self -
consciousness and concern about prospective employers’ reactions. She deferred to
the occupational therapist and psychologist in relation to retirement age.
[15] Ms Fletcher, the occupational therapist, reported that the plaintiff retains
functional range of motion and strength of the neck, trunk and upper limbs, with
occasional shoulder pain. She noted reduced strength and pain in the left lower limb,
impaired balance when visual input is restricted, reduced grip strength in the left
hand and decreased bilateral speed and coordination. She assessed functional
limitations in walking endurance, stair climbing, forward bending, squatting, kneeling
and prolonged standing. Importantly, she concluded that the plaintiff remains
capable of low-range medium, light and sedentary work, including work as a courier
driver or assistant truck driver.
[16] Mr Leibowitz, the industrial psychologist, assessed the plaintiff’s educational
background, employment history, vocational profile and earning potential. The
plaintiff holds a Grade 12 qualification and a one- year diploma in basic ambulance
skills. Prior to the accident, he had experienced periods of unemployment but had
been employed as a driver since September 2021. Mr Leibowitz expressed the
opinion that the plaintiff would probably have continued working as a driver until
normal retirement age, with inc ome progression through inflationary increases. He
also expressed the opinion that the plaintiff is less competitive in the labour market
due to his injuries, particularly if he were to lose his current employment, and
due to his injuries, particularly if he were to lose his current employment, and
accepted the opinion that the plaintiff would probably retire five years earlier than
normal retirement age.
[17] Mr Loots, the actuary, calculated the plaintiff’s past and future loss of
earnings based on the assumptions provided to him. The calculation assumed early
retirement at age 60 in the post -morbid scenario and applied increased
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contingencies to account for alleged future employment risks. Based on those
assumptions, the actuary calculated total loss of earnings in the amount of R1 115
120, comprising past and future loss.
Legal framework
[18] A claim for past loss of earnings, future loss of earnings or loss of earning
capacity is a claim for patrimonial damages. The enquiry is not simply whether the
plaintiff sustained bodily injuries, or whether those injuries impaired his physical or
functional capacity. The enquiry is whether the injuries have caused, or will probably
cause, a diminution in the plaintiff’s patrimony.
[19] In Rudman v Road Accident Fund ,
1 the Supreme Court of Appeal
emphasised that a physical disability which impacts upon earning capacity does not
necessarily reduce the estate or patrimony of the injured person. There must be
proof that the reduction in earning capacity gives rise to pecuniary loss . The same
principle was restated in R oad Accident Fund v Kerridge 2 (Kerridge), where the
Supreme Court of Appeal held that loss of income and income- earning capacity
must be proved. Where loss has been established but its precise amount is difficult
to quantify, the Court must make the best use it can of the evidence. But the fact of
patrimonial loss must first be established.
[20] The fact that the quantification of future loss is difficult does not mean that
the claim must fail where the fact of patrimonial loss has been established. The court
must make the best use it can of the evidence. In Hersman v Shapiro & Co ,3 a
dictum approved in Kerridge, the Court held that, where pecuniary damage has been
suffered, the court is bound to award damages even if the assessment is little more
than an estimate.
[21] The assessment of future loss of earnings is necessarily speculative. In
1 Rudman v Road Accident Fund [2002] ZASCA 129; [2002] 4 All SA 422 (SCA); 2003 (2) SA 234
(SCA) para 11 (Rudman).
(SCA) para 11 (Rudman).
2 Road Accident Fund v Kerridge [2018] ZASCA 151; [2019] 1 All SA 92 (SCA); 2019 (2) SA 233
(SCA) para 25 (Kerridge).
3 Hersman v Shapiro & Co 1926 TPD 367 at 379.
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Southern Insurance Association Ltd v Bailey NO ,4 the Appellate Division held that
any enquiry into damages for loss of earning capacity involves prediction as to the
future, and that all the court can do is make an estimate of the present value of the
loss. Actuarial calculations may assist the court, but they do not bind it. The court
retains a wide discretion to award what it considers just. In Road Accident Fund v G
S O Guedes,5 the Supreme Court of Appeal confirmed that the trial court exercises
a discretion in assessing future loss and contingencies. There are no fixed rules.
Contingencies must be assessed on the facts of the particular matter.
[22] Contingencies are not a mechanism to cure unsupported assumptions, to
inflate speculative scenarios, or to compensate for a loss that has not otherwise
been proved. They are applied only after the Court is satisfied that the relevant pre-
morbid and post -morbid scenarios have a proper evidential foundation. The proper
approach is to compare the probable pre- accident earnings or earning capacity with
the probable post -accident earnings or residual earning capacity, and then to apply
appropriate contingencies to both scenarios. In Kerridge,
6 the Supreme Court of
Appeal stressed that residual earning capacity must be properly considered. A
claimant who remains capable of earning income is not to be treated as having no
residual earning capacity unless the evidence justifies that conclusion.
[23] Kerridge7 also emphasised that expert opinions are only as reliable as the
facts on which they are based. The facts upon which experts rely must be
determined by the judicial officer. Expert witnesses cannot usurp the function of the
Court, and the Court may not abdicate its responsibility to evaluate the evidence. It
follows that where expert reports proceed from uncertain or unsupported
assumptions about a claimant’s pre-morbid career path, post -morbid employability,
assumptions about a claimant’s pre-morbid career path, post -morbid employability,
salary progression, retirement age or residual earning capacity, the Court is entitled
to reject or adjust those assumptions.
[24] The distinction between occupational impairment and compensable
4 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A); [1984] 1 All SA 360 (A) at 113G
and 116G-117D.
5 Road Accident Fund v G S O Guedes [2006] ZASCA 19; [2006] ZASCA 19; 2006 (5) SA 583 (SCA)
paras 5 and 8 (Guedes).
6 Kerridge paras 54-56.
7 Ibid para 50.
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patrimonial loss is illustrated in Prinsloo v Road Accident Fund 8 (Prinsloo). In that
matter, the claimant, a police inspector, had sustained injuries resulting in
permanent disability and impairment in the performance of physically demanding
police duties. The trial court awarded general damages but dismissed the claim for
future loss of earning capacity. The Full Court upheld that approach. It held that
proof of physical injury and occupational impairment did not, without more, establish
a diminution in earning capacity or a reduction in income. The evidence may
establish that an injury has no appreciable effect on earning capacity, in which event
damages under that head are nil.
[25] These principles apply with equal force in unopposed or default RAF
matters. The absence of opposition does not relieve the plaintiff of the burden of
proof, nor does it relieve the Court of its duty to ensure that any award is supported
by admissible and reliable evidence.
[26] In M M K obo M K v Road Accident Fund
9 (M M K ), the Supreme Court of
Appeal confirmed that, even where the RAF is absent, the plaintiff must prove the
essential factual basis for the claim, including injury, causation, patrimonial loss and
quantum. The Court further warned that, where the RAF does not participate in the
adjudication of a matter, courts must bring special care to bear to avoid orders
compelling the RAF to pay damages that have not been proved. This Court does not
understand M M K to mean that an unopposed RAF claim is to be approached with
suspicion, nor is this a case in which no evidence was presented. Its relevance lies
in the more limited but important proposition that the absence of the RAF does not
relieve the plaintiff of the onus to prove the factual foundation of each head of
damages claimed.
[27] The evidence must be evaluated against these principles.
Evaluation
[28] The plaintiff’s evidence as to the occurrence of the collision is uncontested.
[28] The plaintiff’s evidence as to the occurrence of the collision is uncontested.
He was a pedestrian walking on the pavement when he was struck by the insured
8 Prinsloo v Road Accident Fund [2010] ZAECGHC 9 para 8 (Prinsloo).
9 M M K obo M K v Road Accident Fund [2025] ZASCA 136 paras 26-30.
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motor vehicle. There is no evidence suggesting contributory negligence on his part. I
am satisfied that the plaintiff has proved that the collision was caused by the
negligent driving of the insured driver and that the defendant is liable for 100% of the
plaintiff’s proven damages arising from the collision.
[29] This Court accepts that the plaintiff was injured in the collision. The medical
reports record a left knee injury, bilateral knee wounds, abrasions, scarring and a
period of immobilisation of the left knee. I also accept that the plaintiff experienced a
period of temporary incapacity and discomfort, and that he has some residual
symptoms, particularly in relation to his left knee. The plaintiff’s injuries are not
insignificant. However, the existence of injury and residual symptoms does not
resolve the patr imonial enquiry. The question remains whether those injuries have
caused, or will probably cause, loss of income or a diminution of earning capacity
resulting in pecuniary loss.
Past loss of earnings
[30] The plaintiff’s claim for past loss of earnings stands on a different footing
from the claim for future loss. It relates to a defined period following the accident and
is capable of objective assessment. The actuarial calculation places the plaintiff’s
past loss of earnings at R12 355. The calculation is based on the period during
which the plaintiff was unable to work after the accident. I am satisfied that this loss
has been proved on a balance of probabilities. The plaintiff is therefore entitled to an
award of R12 355 in respect of past loss of earnings.
[31] The plaintiff’s oral evidence concerning his retrenchment in approximately
March 2025, the subsequent period of unemployment, and his lower current
earnings does not justify any additional award for past loss. That evidence was not
the subject of a revised actuarial calculation and was not quantified as a separate
accident-related past loss. More importantly, the evidence does not establish that
accident-related past loss. More importantly, the evidence does not establish that
the retrenchment, the period of unemployment, or the lower current income were
caused by the accident injuries. N o additional past loss beyond the actuarially
calculated amount of R12 355 has therefore been proved.
Future loss of earnings or earning capacity
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[32] The more difficult question is whether the plaintiff has proved future loss of
earnings or earning capacity. The plaintiff’s future-loss claim rests substantially on
the opinions that he is less competitive in the labour market, that he is confined to
lighter work, that he will struggle to obtain employment should he lose his present
employment, and that he will probably retire five years earlier than he otherwise
would have done. The actuarial calculation gives effect to those assumptions by
applying a higher post-accident contingency and by calculating the plaintiff’s post -
accident working life on the basis of retirement at age 60.
[33] I am not persuaded that the evidential foundation for those assumptions has
been established. At the time of the industrial psychologist’s assessment, the
plaintiff had returned to work and was recorded as continuing in courier -related
duties. The later oral evidence, however, was that the plaintiff was retrenched in
approximately March 2025, remained unemployed for about three months, and
thereafter obtained alternative employment as a driver in approximately June or July
2025. That later evidence was not incorporated into a revised industrial
psychological or actuarial assessment.
[34] I do not hold that employer evidence is required as a rule. A plaintiff may
prove employment -related facts by any admissible and reliable evidence. The
difficulty in the present matter is that the future- loss case rests on employment -
related assumptions: that the plaintiff is no longer able to perform the material duties
of his pre- accident work; that he requires permanent accommodation; that his
earning progression or overtime will probably be curtailed; that his present or future
lower earnings are causal ly attributable to the accident injuries; and that he will
probably retire five years earlier than normal retirement age. Those assumptions
required proof. They are not established merely because the plaintiff sustained
required proof. They are not established merely because the plaintiff sustained
injuries or because experts accepted his account for purposes of their reports.
[35] The evidence that the plaintiff obtained alternative employment within
approximately three months of retrenchment is relevant to residual earning capacity
in the open labour market. His present earnings may be lower than his previous
earnings, but the evidence does not establish that the retrenchment, the intervening
period of unemployment, or the lower current earnings are causally attributable to
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the accident injuries rather than to retrenchment, change of employer, available
hours, overtime arrangements, or ordinary labour-market conditions.
[36] The plaintiff’s evidence that he holds a Code 14 licence but presently drives
smaller vehicles, including Code 10 vehicles, and that he experiences pain or
cramps when driving long distances, does not, on its own, establish the quantified
future-loss claim. The evidence does not establish with sufficient precision that the
plaintiff’s pre-accident earning trajectory depended on Code 14 long- distance
driving, that comparable work was available to him but lost because of the accident
injuries, or that the actuarial pre-accident scenario was founded upon such work.
[37] The occupational therapist’s report supports a finding that the plaintiff has
functional restrictions. He may have difficulty with prolonged walking, stair climbing,
forward bending, squatting, crouching and kneeling, and he should avoid heavier
physical demands. However, the same report records that the plaintiff remains
capable of low -range medium, light and sedentary work and specifically refers to
courier-driver and assistant -truck-driver work. The plaintiff has therefore not been
shown to be unemployable.
[38] I have also considered the clinical psychologist’s report. The diagnosis of
depression, anxiety and post -traumatic stress symptoms may be relevant to the
plaintiff’s general condition and future treatment. However, the report does not
establish that those symptoms have resulted, or will probably result, in a measurable
reduction in the plaintiff’s income. The recommendation of psychotherapy does not,
without more, prove future patrimonial loss.
[39] The aesthetic specialist’s evidence must also be approached with care
under this head of damages. The plaintiff’s scarring may be relevant to general
damages or treatment. General damages are not before me. The question presently
damages or treatment. General damages are not before me. The question presently
is whether the scarring has been shown to impair the plaintiff’s earning capacity in a
manner that will probably cause pecuniary loss. There is no persuasive vocational
evidence that the plaintiff’s scars, as opposed to the physical restrictions in his knee,
will probably reduce his earnings as a courier driver or similar worker. To the extent
that the aesthetic specialist expresses views on employability and productivity, those
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conclusions are not supported by a sufficient factual employment foundation.
[40] The industrial psychologist’s conclusion that the plaintiff will be
disadvantaged should he lose his employment is not, in itself, enough. A possibility
of disadvantage in the open labour market is not the same as proof of probable
patrimonial loss. The evidence must show that the risk is real and sufficiently
probable to warrant compensation. On the evidence before me, that bridge has not
been crossed.
[41] The early -retirement assumption is particularly problematic. No evidence
has been placed before the Court, whether from an employer, a retirement policy, a
medical prognosis, or any other reliable source, establishing that the plaintiff will
probably be unable to continue working to normal retirement age. There is no
evidence of progressive deterioration and no persuasive medical basis for the
conclusion that the plaintiff will probably retire at age 60. The occupational therapist
does not place the plainti ff outside all suitable work. The industrial psychologist’s
adoption of early retirement at age 60 accordingly rests on an assumption that has
not been proved.
[42] The actuarial report does not cure this difficulty. An actuarial calculation is
dependent on the assumptions provided to the actuary. The actuary does not
determine whether those assumptions are legally or factually proved. Once the
assumptions of early retirement and a substantially higher post -accident
contingency are not accepted, the actuarial calculation cannot itself prove future
loss.
[43] This is not a case in which the Court is faced with proved accident -related
patrimonial loss but uncertainty about exact quantification. Were that the position,
the Court would be obliged to make the best estimate it could on the available
evidence. This is instead a case in which the fact of an accident -related future
patrimonial loss has not been proved. Contingencies cannot be used to compensate
patrimonial loss has not been proved. Contingencies cannot be used to compensate
for a loss that has not first been established.
[44] The plaintiff’s oral evidence did not supply the missing factual foundation.
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He did not identify any failed attempt to obtain comparable employment attributable
to the accident injuries, any warning or indication from an employer that his
continued employment was at risk because of his injuries, any actual loss of
overtime causally connected to the injuries, or any factual basis for the proposition
that he will probably retire before normal retirement age. Although he testified that
his present earnings are lower than his previous earnings, he did not establish that
the difference is caused by the accident injuries.
[45] The present case is analogous in principle to Prinsloo. The plaintiff has
proved injury and some residual functional limitation. What has not been proved is
that those limitations will probably cause a measurable diminution of his patrimony. I
accordingly find that the plaintiff has not proved, on a balance of probabilities, a
future loss of earnings or earning capacity. That claim must be dismissed.
Future medical expenses
[46] The plaintiff also seeks relief in respect of future medical expenses. No
capital amount for past or future medical expenses has been quantified or proved.
The evidence does, however, establish that the plaintiff sustained injuries in the
collision and that future treatment or services may reasonably be required as a
result thereof. The clinical psychologist recommends psychotherapy, and the
medical evidence supports the possibility of future treatment or services related to
the accident injuries.
[47] In the circumstances, the appropriate relief is an undertaking in terms of
s 17(4)(a) of the Road Accident Fund Act, limited to costs arising from the injuries
sustained in the collision, after such costs have been incurred and upon proof
thereof.
General Damages
[48] General damages are not adjudicated in this judgment. The defendant has
not accepted that the plaintiff qualifies for general damages and the jurisdictional
requirements for determination of that issue are not presently satisfied. The
requirements for determination of that issue are not presently satisfied. The
plaintiff’s claim for general damages must therefore stand over for later
determination.
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Costs
[49] The plaintiff has succeeded in establishing liability, past loss of earnings and
entitlement to a statutory undertaking. He has not succeeded in proving future loss
of earnings or earning capacity, which was the principal monetary component of the
claim advanced at trial.
[50] The costs order must reflect that mixed result. The defendant should pay the
costs reasonably incurred in relation to the issues on which the plaintiff succeeded,
including liability, past loss of earnings and the s 17(4) (a) undertaking. The
defendant should not be liable for costs incurred solely in pursuit of the dismissed
claim for future loss of earnings or earning capacity.
[51] Although the capital amount awarded is limited, the matter involved
dismissed special pleas, expert evidence admitted under r ule 38(2), and the
determination of liability, past loss and a statutory undertaking. In those
circumstances, counsel’s fees on scale B are justified, but only insofar as such fees
relate to the issues on which the plaintiff succeeded and are allowed on taxation or
agreement.
[52] Costs relating exclusively to the claim for general damages should stand
over for determination by the court that ultimately hears that issue.
Order
[53] In the result, the following order is made:
1 The defendant is liable for 100% of the plaintiff’s proven or agreed damages
arising from the motor vehicle collision which occurred on 25 January 2023.
2 The plaintiff’s claim for future loss of earnings and/or loss of earning capacity
is dismissed.
3 The plaintiff’s claim for past loss of earnings is upheld.
4 The defendant shall pay to the plaintiff the amount of R12 355.00 in respect
of past loss of earnings.
5 The defendant shall furnish the plaintiff with a 100% undertaking in terms of
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s 17(4)(a) of the Road Accident Fund Act 56 of 1996 for the costs of future
accommodation in a hospital or nursing home, treatment of or rendering of a service
or supplying of goods to the plaintiff, arising from the injuries sustained by the
plaintiff in the motor vehicle collision on 25 January 2023, after such costs have been
incurred and upon proof thereof.
6 The undertaking referred to in paragraph 5 shall be delivered to the plaintiff’s
attorneys within 30 days of the date of this order.
7 The plaintiff’s claim for general damages stands over for later determination.
8 Interest on the amount referred to in paragraph 4 shall accrue at the
prescribed rate in terms of the Prescribed Rate of Interest Act 55 of 1975, calculated
from 14 calendar days after the date of this order to date of final payment.
9 The defendant shall pay the plaintiff’s taxed or agreed party -and-party costs
reasonably incurred in relation to the issues on which the plaintiff was successful,
namely liability, past loss of earnings and the s 17(4)(a) undertaking.
10 The costs referred to in paragraph 9 shall include counsel’s fees on Scale B,
to the extent allowed on taxation or agreement, and the reasonable qualifying,
preparation and report costs of expert witnesses insofar as the Taxing Master is
satisfied that such costs were reasonably necessary for the issues on which the
plaintiff was successful.
11 The defendant shall not be liable for costs incurred solely in pursuit of the
dismissed claim for future loss of earnings and/or loss of earning capacity.
12 Costs relating exclusively to the claim for general damages are reserved for
determination by the Court hearing that issue.
T DEANE
ACTING JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: A P Berry
Instructed by: Med Attorneys,
Bloemfontein
For the defendant: No appearance.
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