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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Reportable: NO
Of interest to other Judges: NO
Revised: NO
Date: 19 June 2026 S.S Tebeile AJ
Signature: _________________
Case No: 2021-26549
In the matter between:
W[…] B[…] First Plaintiff
W[…] M[…] S[…] Second Plaintiff
and
ROAD ACCIDENT FUND Defendant
Heard on : 18 March 2026
Decided on : 19 June 2026
JUDGMENT
TEBEILE AJ:
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Introduction
[1] This is a default judgment application brought by the p laintiffs following the
striking out of the d efendant's defence by an order of Nkoenyane AJ on 31 July
2024.
[2] The second plaintiff, M[…] S[…] W[…] , a 21 -year-old male, was injured in a
motor vehicle collision on 16 August 2019 when he was approximately 15 years
old.
[3] The defendant’s defence was struck out ipso facto on 11 August 2024 for non -
compliance with the c ourt order of 31 July 2024. The defendant has not taken
any steps to re -instate its defence or oppose the present default judgment
application.
Background
[4] On 16 August 2019 at approximately 13h40 on Ermelo Road, Casseldale,
Springs, a collision occurred between a motor vehicle bearing registration
number FW […] GP driven by one Mr Dlangalala (“the insured driver”) and a
vehicle bearing registration number CP […] GP driven by one E[…] W[…] . The
second plaintiff was a passenger in the motor vehicle driven by E[…] W[…] .
[5] The collision occurred when the insured driver executed a U -turn suddenly and
without warning directly across the path of travel of the vehicle in which the
second plaintiff was travelling. The s econd plaintiff sustained severe bodily
injuries as a result of the collision.
[6] The first plaintiff, Ms B[…] W[…] , is the s econd plaintiff’s mother and claims
in her personal capacity for past hospital and medical expenses incurred on
behalf of the second plaintiff.
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Merits and liability
[7] The uncontested evidence before this court demonstrates that the collision was
caused by the sole negligence of the insured driver. The insured driver failed to
keep a proper lookout, drove at excessive speed, failed to maintain proper
control of the vehicle, and executed a U -turn without warning directly across the
path of travel of the vehicle in which the second plaintiff was travelling.
[8] The first plaintiff was a passenger, and no negligence is attributed to the second
plaintiff. The defendant has not filed any opposing papers , and its defence has
been struck out. The plaintiffs are therefore entitled to judgment on the merits,
with the defendant liable for 100% of the plaintiffs’ proven or agreed damages.
Application in terms of Rule 38(2)
[9] The plaintiffs have brought an application in terms of Rule 38(2) of the Uniform
Rules of Court, seeking to have the evidence of the plaintiffs and their expert
witnesses admitted by way of affidavit.
[10] The defendant’s defence having been struck out, there is no opposition to the
plaintiffs’ claim. The admission of evidence by affidavit is convenient and will
save costs. There is no prejudice to any party. I am satisfied that the application
should be granted.
Injuries sustained by the second plaintiff
[11] The second plaintiff sustained the following injuries as recorded in the medico -
legal reports:
11.1. An axial skeleton soft tissue injury.
11.2. A concussive head injury with a forehead abrasion.
11.3. A chest contusion with possible rib fractures.
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11.4. A mild traumatic brain injury (TBI/concussion) with post -concussion
syndrome.
[12] According to the neuropsychologist, Ms Hovsha, the second plaintiff suffered
severely impaired auditory attention, concentration and tracking; below average
executive functioning; memory deficits; severe depression; and post -traumatic
stress disorder.
[13] The second plaintiff was transported by ambulance from the scene to Life
Springs Parkland Clinic, where he remained for approximately four days. His
injuries were managed conservatively, including by way of in -hospital
physiotherapy. He continues to experience significant symptoms, including
chronic neck and back pain, migraines, poor memory and concentration, anxiety,
and depression.
Past hospital and medical expenses
[14] The first plaintiff claims an amount of R21 979.83 in respect of past hospital and
medical expenses. The supporting vouchers have been presented before this
court, and Dr J.P. Marin (orthopaedic surgeon) has confirmed that the expenses
are accident -related and the costs are fair and reasonable . The claim in this
regard is granted.
Future hospital and medical expenses
[15] It is evident from the medico -legal reports that the second plaintiff has sustained
serious injuries which will require ongoing treatment. The d efendant is
accordingly ordered to furnish the s econd plaintiff with an undertaking in terms
of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, covering 100% of
the costs of future accommodation, treatment, services and goods relating to the
injuries sustained in the collision.
Plaintiffs’ submissions for loss of earnings
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[16] The industrial psychologist, Ms du Toit, postulates that, but for the accident, the
second plaintiff would likely have obtained a Grade 12 (NQF 4) within a
supportive academic environment and would have obtained an advanced
diploma (NQF 7 level). He would have earned at Paterson level B5 median
(basic salary) with gradual progression to Paterson level C5/D1 median (total
package) towards age 45 as career ceiling, with retirement at age 65.
[17] Having regard to the accident, Ms du Toit postulates that the second plaintiff
will now likely complete NQF higher vocational certificates following a more
practical/vocational route at a TVET/FET college. He would complete his N6
level studies and practical training, and pass his trade test to become a qualified
electrician. He would peak on Paterson C2 median (total package) with
retirement at age 65. Due to the sequelae of the brain injury, he would remain a
vulnerable worker with a higher- than-normal post-accident contingency value
being appropriate.
[18] The actuary, Mr Loots, calculated the second plaintiff’s loss of earnings based
on the postulations of the i ndustrial psychologist. His report dated 13 October
2025 indicates a loss of earnings of R4 439 917.00, applying contingency
deductions of 5% for past income and 20% for future earnings disregarding the
accident, and 35% for earnings having regard to the accident.
Legal principles and contingency deductions
[19] It is trite that the assessment of damages for loss of earning capacity is inherently
speculative. The court must make an estimate of the present value of the loss,
which is often a very rough estimate. The method of actuarial computation is
useful but does not bind the court . The trial judge retains a large discretion to
award what he or she considers right.
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[20] The assessment of damages for loss of earnings or earning capacity is inherently
uncertain. In Southern Insurance Association Ltd v Bailey NO1 it was 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.”
[21] Contingency deductions are a flexible, discretionary adjustment made by the
court. The standard contingencies are typically 5% to 15% for pre -morbid
income and 15% to 35% for post-morbid income, depending on the facts of each
case. However, where the plaintiff’s prospects are particularly speculative or the
post-morbid scenario is fraught with uncertainties, higher contingencies may be
applied.
[22] In Road Accident Fund v Guedes 2 the Supreme Court of Appeal reiterated that
the assessment of future loss is not a mathematical exercise but a matter of
judicial estimation, having regard to the evidence and the probabilities. 3 The
Court stated:
“The calculation of the quantum of a future amount, such as loss of earning capacity,
is not, as I have already indicated, 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 which is often a very rough estimate”.4
[23] The Supreme Court of Appeal in Road Accident Fund v Guedes went on and
stated:
1 1984 (1) SA 98 (A).
2 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).
3 Id at para 8.
4 Id, see also President Insurance Co Ltd v Mathews 1992 (1) SA 1 (A) at 5C-E.
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“The court necessarily exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity and has a large discretion to award what it
considers right. Courts have adopted the approach that in order to assist in such a
calculation, an actuarial computation is a useful basis for establishing the quantum of
damages. Even then, the trial court has a wide discretion to award what it believes is
just”.5
[24] It is also trite that c ontingency deductions are made to account for the
vicissitudes of life 6 or the hazards of life that normally beset the lives and
circumstances of ordinary people. These include matters such as the possibility
of illness, periods of unemployment, labour unrest, general economic conditions,
and the chance of early death. The assessment of the rate of discount is largely
arbitrary and must depend upon the trial judge’s impression of the case.
[25] In practice, courts often apply differential contingencies, i.e., one percentage for
the pre -accident (or pre -morbid) scenario and a different, often higher,
percentage for the post -accident (or post -morbid) scenario. This recognises that
the plaintiff’s future is more uncertain and precarious as a result of the injuries.
Analysis and application
[26] The plaintiffs submitted that the loss of earnings should be calculated based on
the actuarial report of Mr Wim Loots, which applied contingency deductions of
5% for past income (both pre - and post-accident), 20% for future earnings (pre -
accident), and 35% for future earnings (post-accident).
[27] This Court is called upon to determine whether these contingency deductions are
fair and reasonable. I am persuaded that they are not. In my view, t he pre -
accident contingency deduction of 20% is not justified. The normal contingency
for future loss is 15%, and the sliding scale for a youth (the s econd plaintiff was
15 years old at the time of the accident) would suggest a figure around 20%.
15 years old at the time of the accident) would suggest a figure around 20%.
However, it is crucial to apply the correct principles. The court must have regard
5 Id, see also Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A)
114F-115D.
6 See Southern Insurance Association Ltd v Bailey NO.
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to the specific facts of the case. The evidence indicates that the s econd plaintiff
was a scholar with aspirations to become a doctor or chiropractor.
[28] The experts’ reports reveal a young man who, despite a history of bullying, had
the academic potential to reach NQF 7 level. Given his young age and the
inherent uncertainties of life, a pre-accident contingency of 10% for future loss is
appropriate. The standard 5% deduction for past loss is accepted.
[29] The post-accident contingency deduction of 35% is also unsupported. While the
second plaintiff is indeed a vulnerable employee, he has shown resilience. He
completed Grade 12, achieved his N6 electrician qualification, and secured
employment as an electrical apprentice. The evidence of the industrial
psychologist, Ms du Toit, suggests that he will likely complete his practical
training and pass his trade test, qualifying as an electrician. He will then be able
to earn a living, albeit with limitations. A 35% contingency for post -accident
future loss is disproportionate in light of these facts. A more appropriate
deduction is 5%, reflecting the ordinary vicissitudes of life, such as potential
unemployment, illness, or the risk of injury inherent in his chosen profession.
[30] The appropriate contingency deductions are therefore:
30.1. Past loss of earnings (pre- and post-accident): 5%
30.2. Future loss of earnings (pre-accident): 10%
30.3. Future loss of earnings (post-accident): 5%
[31] The second plaintiff’s loss of earnings is calculated based on the actuarial report
and the industrial psychologist’s postulations. Using the contingency deductions
as determined above (past loss of earnings (pre - and post-accident): 5%; future
loss of earnings (pre -accident): 10%; and future loss of earnings (post -
accident): 5%, the calculation is as follows:
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Item Past loss Future loss Total loss
Earnings had accident not occurred R239 100 R13 672 524 R13 911 624
Less: pre-accident contingencies(5%/ 10%) R11 955 R1 367 252 R1 379 207
Net Pre-accident Earnings R227 145 R12 305 272 R12 532 417
Earnings having regard to accident R116 949 R10 175 608 R10 292 557
Less: post-accident contingencies (5%/5%) R5 847 R508 780 R514 627
Net Post-accident Earnings R111 102 R9 666 828 R9 777 930
Loss of Earnings R116 043 R2 638 444 R2 754 487
Total Loss of Earnings R116 043 R2 638 444 R2 754 487
Future hospital and medical expenses
[32] The medico-legal reports establish that the second plaintiff has sustained serious
injuries requiring ongoing treatment. Dr Read recommended conservative
treatment including analgesics, anti -inflammatories, muscle relaxants, ulcer
prophylaxis, and physiotherapy sessions.
[33] Dr Mutyaba expressed the opinion that chronic pain syndrome requires
management by a multi -disciplinary team. Ms Hovsha recommended treatment
by a psychiatrist and clinical psychologist.
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[34] I find that the second plaintiff is entitled to an undertaking in terms of section
17(4)(a) of the Road Accident Fund Act 56 1996, for 100% of his future
medical, hospital, and related expenses.
General damages
[35] The second plaintiff has not been qualified for general damages. The orthopaedic
experts, Dr Read and Dr Mutyaba, both opined that the s econd plaintiff does not
qualify for general damages as his whole person impairment is less than 30%.
[36] At the hearing of this application the p laintiffs did not press a claim for general
damages.
Costs
[37] Costs should follow the result. The p laintiffs have been substantially successful
in establishing liability and his entitlement to compensation. The plaintiffs
sought costs on scale C. However, in the exercise of my discretion, I award costs
on scale B on the party and party scale . This is not a complex matter that
warrants a higher scale on costs. There is no justification to award costs on scale
C.
Order
[38] Accordingly, I make the following order:
(1) The plaintiffs’ application in terms of Rule 38(2) is granted.
(2) The defendant is declared 100% liable for the p laintiffs’ proven or
agreed damages in respect of motor vehicle accident that occurred on
16 August 2019.
(3) The defendant shall, within 180 days from the date of this order, pay
to the plaintiffs the amount of R 2 776 466.83 (Two Million Seven
Hundred and Seventy-Six Thousand Four Hundred and Sixty-six
Rand and Eighty-Three Cents) made up as follows:
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3.1. Past hospital and medical expenses: R21 979.83
3.2. Loss of earnings: R2 754 487.00
(4) The amount referred to in paragraph 3 shall be paid into the
plaintiffs’ attorneys’ trust account.
(5) The defendant shall pay interest on the amount referred to in
paragraph 3 at the rate of 11.25% per annum, calculated from 14
days after the date of this judgment to the date of final payment.
(6) The defendant shall, within 30 days of service of this order, furnish
the second plaintiff with an undertaking in terms of section 17(4)(a)
of the Road Accident Fund Act 56 of 1996, which undertaking shall
cover 100% of the costs of future accommodation in a hospital or
nursing home, or treatment, or rendering of a service, or supplying of
goods to the second plaintiff, after such costs have been incurred and
on proof thereof (or directly to the provider), arising from the
injuries sustained in the collision of 16 August 2019.
(7) The defendant shall pay the plaintiffs’ costs of suit party and party
scale B, and such costs to include:
7.1. The reasonable travelling and accommodation costs incurred by the
plaintiffs in attending medico-legal appointments.
7.2. The costs of the medico -legal reports and addendum reports, and the
reasonable qualifying and/or preparation fees of the experts of whom
notice was given in terms of Rule 36 of the Uniform Rules, including
the Rule 38(2) affidavits by the plaintiffs’ experts.
7.3. Counsel’s costs on scale B.
7.4. The costs of obtaining and attending to the application for default
judgment, including the costs of standing down the matter from 17
May 2026 to 18 March 2026, both days included.
(8) The defendant is to load the amount awarded in paragraph 2 onto its
RNYP list within 30 days of service of this order, for payment to
follow.
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(9) The first plaintiff has a valid contingency fee agreement with her
attorneys of record.
_______________________________________
SHADRACK TEBEILE
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
For the Plaintiffs: Adv S Mulligan instructed by Levin Tatanis Inc
For the Defendant: No appearance