THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
METHODSHOKO
and
ROAD ACCIDENT FUND
Not Reportable
Case No: 14076/22
PLAINTIFF
DEFENDANT
Neutral citation: Shoko v The Road Accident Fund (Case no 14076-22) [2026)
ZAWCHC .... (12 August 2026)
Coram: YAKEAJ
Heard: 13 May 2026
Delivered: Electronically on 12 August 2026
Summary: Delict - Liability - Personal injury claim - plaintiff claiming for
injuries sustained as a result of a motor vehicle accident- merits and quantum in
dispute - the defendant is 100% liable for plaintiffs damages - past hospital and
medical expenses claim dismissed - no supporting vouchers submitted- section
17(4) (a) of the Road Accident Fund Act 56 of 1996 undertaking granted for
future medical and related expenses
ORDER
1. The defendant is declared 100% liable for the plaintiffs damages.
2. The defendant shall pay to the plaintiff the sum ofRl 525 580 (one million,
five hundred and twenty-five thousand, five hundred and eighty rand) in respect
of past and future loss of earnings as well as general damages.
3. Past hospital and medical expenses claim dismissed.
4. The defendant shall provide the plaintiff with an undertaking In terms of
section 17(4) (a) of the Road Accident Fund Act 56 of 1996, to compensate the
plaintiff for 100% of costs relating to the future accommodation of the plaintiff
in a hospital or nursing home or treatment of or rendering of a service or
supplying of goods to the plaintiff, after the costs have been incurred and on
proof thereof and arising from the collision which occurred on 8 April 2020.
5. The defendant is ordered to pay the plaintiff's taxed o~ agreed costs on the
High Court scale as between party and party including the costs set out
hereunder:
5.1 Any costs attendant upon the obtaining of payment of the amount
referred to in paragraph 2 above.
5.2 Regarding the plaintiffs expert witnesses listed
2
herein below, taxed or agreed fees, qualifying expenses and
reservation fees (including such travel expenses actually incurred),
and the costs attached to the procurement of medico-legal reports,
any addendum reports, joints minutes, as well as x-rays and scans
and other related costs. The latter costs shall include the costs of
attending all plaintiffs and defendant's medico-legal examination,
the amount of which will be taxed at the discretion of the Taxing
Master:
(a) Dr. P.A. Olivier, orthopaedic surgeon
(b) Ms. L. Kruger, occupational therapist
(c)Mr. L. Blaauw, biolcinetics
( d) Dr. R. Bredekamp, counselling psychologist
(e) Ms. N. Colley, industrial psychologist
3
(f) Munro Forensic Actuaries
5.3 The taxed or agreed fees and costs of the plaintiffs legal
representatives in consulting with the experts and other witnesses in
preparation for the trial.
5.4 The taxed or agreed fees of the plaintiffs counsel in respect of the
preparation and trial, including the furnishing of advice on evidence
and drafting of heads of argument, on Scale C.
6.The capitaLamount referred to in paragraph 2 is payable within 180 days from , . ' •
service of this Court Order into the trust account of the plaintiffs attorneys of
record with the following details:
Account Holder Name: De Vries Shields Chiat Inc.
Bank: FNB Business
Branch: Portside
Branch Code: 210651
4
7. Payment of the taxed or agreed costs reflected above shall be made within 14
calendar days of taxation/settlement.
8. The interest in respect of both capital and costs will follow in terms of section
17(3) of the Road Accident Fund Act (the capital interest is due within 14 days
following the date of taxation/settlement of the costs).
JUDGMENT
YAKE, AJ:
Introduction
[ 1] The matter serves before this Court by way of action proceedings. The
plaintiff, a 41-year-old male junior technician, born on 15 January 1985 and a
Zimbabwean national, has instituted action against the Road Accident Fund ('the
defendant') in terms of the Road Accident Fund Act1 ('the Act'). The relief sought
arises from bodily injuries sustained in a motor vehicle accident ('the accident')
which occurred on 8 April 2020 along Klawer Road near Vredendal in the
Western Cape.
[2] At the time of the accident, _the plaintiff, then aged 35, alleges that he was
conveyed as a passenger in the insured motor vehicle, which was under the
control of and driven by the insured driver.
[3] The plaintiff avers that the accident was occasioned solely by the
negligence of the insured driver of the motor vehicle. Consequently, thereof, the
plaintiff sustained bodily injuries comprising multiple rib fractures; abrasive
1 Road Accident Fund Act 56 of I 996 as amended.
s
injuries over the abdomen, lower back and pelvis; fractures of the left distal radius
and ulna; a segmental fracture of the right fibula; and a fracture of the right distal
tibia, which necessitated his hospitalisation.
[ 4] In the result, the relief sought by the plaintiff against the defendant is
framed as follows:
(a) Payment of 100% of all proven damages in favour of the plaintiff;
(b) Payment of past hospital and medical expenses in the sum ofR200 000;
( c) Payment of future medical and related expenses in the sum of R250 000;
( d) Payment of past and future loss of earnings in the sum of R2 000 000; and
(e) Payment of general damages in the sum ofRSOO 000.
Issues to be determined
[5] Both the merits and the quantum of the plaintiff's claim are placed in
dispute. Accordingly, the Court is enjoined to determine, first, the merits of the
plaintiff's claim. Should the claim be upheld, secondly, the quantum of damages
recoverable.
Factual Matrix
[6] The plaintiff testified that on 8 April 2020, he was conveyed as a passenger
in a company motor vehicle driven by the insured driver, his colleague, Moses.
They were travelling along Klawer Road en route to Vredendal. He was seated at
the rear of the bakkie, securely restrained by a seat belt, and occupied himself
with his mobile phone. Suddenly, he experienced a violent impact, whereupon
the vehicle overturned. When he regained awareness, he found himself lying on
the ground. Following the accident, he was initially conveyed to Vredendal
Hospital and was thereafter transferred to Christiaan Barnard Hospital for further
medical treatment.
6
[7) At the time of the accident, the plaintiff was employed by DEA
Technologies in Brackenfell as a technician, earning a monthly income ofR4 500.
His duties entailed, inter alia, the performance of manual and physical activities
such as lifting and carrying heavy loads, the loading and offioading of cooling
units, climbing step ladders and stairs, frequent walking, standing and bending,
undertaking cleaning duties, and assisting fellow technicians by handing them
various tools, parts or materials during technical work on site. In addition, the
plaintiff was engaged on a part-time basis as a painter, from which he earned
between R500 and R600 per day.
[8] Pursuant to the accident, the plaintiff was off duty from the date thereof
and only resumed employment in October 2020. Upon his retµm, he was unable
to perform the duties he had discharged prior to the accident. His employer,
however, accommodated him by assigning lighter tasks, which be continued to
perform for a period of approximately five years. During this time, his
remuneration increased to R5 500 per month.
[9] In November 2024, the plaintiffs employment came to an end owing to
difficulties with his work permit. Thereafter, he continued to engage in part-time
employment as a painter. At the time of giving evidence, he stated that his work
permit had not yet been regularised. The evidence of the plaintiff was not
corroborated by any other witness.
[10] Following the testimony of the plaintiff, his counsel, Mr du Toit, brought
an application in terms of Rule 38(2) of the Uniform Rules of Court, seeking
leave to adduce the evidence of his expert witnesses by way of affidavit. No
submissions were forthcoming from the defendant in opposition thereto.
[ 11] Having considered the application, this Court was satisfied that it was
appropriate and suitable in the circumstances to permit a deviation from the norm
of hearing oral evidence in action proceedings. The medico-legal and actuarial
7
reports prepared by the plaintiffs expert witnesses were accordingly admitted
into evidence in tenn s of Rule 38(2). Regard being had to the saving of time,
costs, and judicial resources attendant upon such a course, this Court concluded
that, in all the circumstances, it was fair and served the interests of justice to allow
the expert evidence to be adduced by way of affidavit. The application was
accordingly granted.
Applicable legal principles on merits/liability
[ 12] The plaintiffs claim herein is based on of section 17 (1) of the Road
Accident Fund Act2 which provides as follows:
'The fund or an agent shall ... be obliged to compensate any person (the third party) for any
loss or damage which the third party has suffered as a result of any bodily injury to himself or
herself . .. caused by or arising from the driving of a motor vehicle by any person at any place
within the Republic, if the injury or death is due to the negligence or other wrongful act of the
driver or the owner of the vehicle.'
[13] It is well-established that the onus rests upon the plaintiff to prove, on a
balance of probabilities, that the damages sustained were the result of the
negligent driving or other wrongful act of the insured driver.3 The principle is
rooted in the general rule articulated in Kruger v Coetzee, 4 where the Appellate
Division held that negligence arises where a reasonable person in the position of
the defendant would foresee the reasonable possibility of harm and would take
steps to guard against such occurrence, yet fails to do so.
[14] In the context of claims under section 17(1) of the Act, it suffices that the
plaintiff establishes even the slightest degree of negligence on the part of the
insured driver. Proof of 1 % negligence is sufficient, for in such circumstances the
defendant is statutorily liable to compensate the plaintiff for 100% of his proven
2 Section 17(1) of the Road Accident Fund Act 56 of 1996 as amended
2 Section 17(1) of the Road Accident Fund Act 56 of 1996 as amended
3 See Goodenough NO v RAF [2003) ZASCA 81; 2003] JOL 11554 (SCA).
4 See Kruger v Coetzee 1966 (2) SA 428 (A); [1966] 2 All SA 490 (A).
8
damages. This principle was affirmed in Prins v Road Accident Fund, 5 where the
court held:
'it is common cause that a passenger needs only to prove the proverbial 1% negligence
on the part of an insured driver in order to get 100% of damages that he/she is entitled
to recover from the Fund.' (My emphasis)
[ 15] Notwithstanding that there is no corresponding onus upon the defendant to
prove the absence of negligence, once the plaintiff has adduced evidence of an
occurrence giving rise to a prima facie inference of negligence on the part of the
insured driver, the defendant bears the evidential burden of furnishing an
explanation sufficient to dispel such inference. In the absence of such an
explanation, the defendant runs the risk of judgment being entered against it.6
[16] In Bomela v Road Accident Funcf the court stated:
'It was incumbent on the defendant to displace the prima facie inference by means of
an explanation. No such evidence has been adduced in these proceedings. A finding
of res ipsa loquitur means that the collision impels an inference of negligence on the
part of the insured driver, in the absence of an explanation. As the defendant has failed
to lead any exculpatory evidence, this Court ineluctably finds the insured driver
negligent and solely liable towards the plaintiff., (My emphasis)
[ 17] The principle articulated in Bomela underscores the evidential burden
resting upon the defendant once a prima facie inference of negligence has been
established. In the absence of any exculpatory evidence, the inference crystallises
into a finding of negligence, thereby rendering the insured driver solely liable.
5 Prins v Road Accident Fund [2013] ZAGPJHC 106 para 4; See also Groenewald C v Road Accident Fund
(2017] ZAGPPHC 8 79 at para 3.
6 Ntsa/a and Others v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (T).
7 Borne/av Road Accident Fund (1345/22) [2024] ZANCHC 35 para 54.
9
Discussion
[ 18] Against this backdrop, it is common cause that the uncontroverted
evidence presented by the plaintiff is that he sustained bodily injuries
necessitating hospitalisation whilst being conveyed in the insured motor vehicle.
The defendant has presented no evidence to contradict the plaintiffs version.
[19] Mr du Toit correctly submitted that the plaintiffs evidence as to the
manner in which the accident occurred remains unchallenged. On this basis,
counsel contends that the defendant bears full liability and that no apportionment
of damages arises, there being no defence before this Court. Counsel further
emphasized that the uncontested evidence demonstrates that the insured driver
lost control of the vehicle, which subsequently overturned, causing the plaintiff
to sustain injuries. No evidence has been adduced to establish what precautionary
steps, if any, the insured driver undertook to avert the imminent emergency in
which he found himself. Counsel submits, the insured driver, as the party
duty-bound to explain the measures taken to avoid the collision, has regrettably
placed no such account before the Court.
[20] Conversely, Ms Thomas, for the defendant, contended that an
apportionment of damages ought to be effected on the basis that there is no
evidence establishing that the plaintiff was wearing a safety belt at the time of the
collision. This omission, so it was argued, amounts to contributory negligence on
the part of the plaintiff.
[21] Addressing the question of contributory negligence, the court in Moloi v
RAF8 the court held:
8 Moloi v RAF [2020] ZAGPPHC 216 para 7.
10
'The defendant called no witnesses to prove such contributory negligence. It follows
therefore that the Plaintiff's version on the cause of the accident remained unchallenged
and therefore no contributory negligence could be established by the Defendant.'
[22] Similarly in Kabini v Road Accident FuncP the court held:
'It is trite that a plaintiff only has to prove l % negligence on the part of an insured driver for a
claim to be established. It is then for the defendant to prove contributory negligence on the side
of the plaintiff.'
(23] Flowing from the foregoing facts and the authorities cited, I have had due
regard to the plaintiffs evidence, which remained unchallenged. The defendant
placed no evidence before this Court to dispute the validity of the plaintiffs
claim, nor was any testimony adduced to contradict the plaintiffs version. The
plaintiff withstood cross-examination and consistently maintained that the
insured driver was the sole cause of the accident. I accordingly find that a causal
nexus exists between the accident and the injuries sustained by the plaintiff, and
that no apportionment of fault arises.
[24] In the premises and applying the principles articulated in the authorities
cited above, namely Kruger v Coetzee, Bomela v Road Accident Fund, Moloi v
Road Accident Fund, and Kabini v Road Accident Fund, it is my considered view
that the defendant has failed to discharge the evidential burden resting upon it to
establish contributory negligence arising from the alleged failure to wear a seat
belt. As such no apportionme1:-t of damages arises. The plaintiffs evidence as to
the cause of the accident remains unchallenged, and the defendant has adduced
no testimony capable of displacing the prima facie inference of negligence on the
part of the insured driver. In consequence, the defendant bears full responsibility
for the damages flowing from the accident and is accordingly liable for one
hundred per cent (100%) of the plaintiffs proven damages.
hundred per cent (100%) of the plaintiffs proven damages.
9 Kabini v Road Accident Fund (2020) ZAGPPHC l 00 para 21.
11
Quantum
[25] I now tum to the issue of the quantum of the plaintiffs claim. This concerns
damages under the following heads: (a) past hospital and medical expenses; (b)
future medical expenses; ( c) loss of earnings; and ( d) general damages. In proving
the quantum of damages, the plaintiff filed medico-legal reports compiled by
various experts, namely:
(a) Dr Olivier, orthopaedic surgeon;
(b) Ms Kruger, occupational therapist;
( c) Ms Blaauw, biokineticist;
( d) Dr Bredekamp, counselling psychologist;
( e) Ms Colley, industrial psychologist; and
(f) Mr Boshoff, actuary from Munro Forensic Actuaries.
[26] These reports were admitted into evidence in terms of Rule 38(2) of the
Uniform Rules of Court and constitute the evidentiary foundation upon which the
assessment of damages must now be undertaken.
[27] Dr Olivier, the orthopaedic surgeon, in his report confirmed that the
plaintiff sustained fractures to the left radius and ulna. He opined that,
notwithstanding fracture stabilisation, there remained signs of ulnar variance and
deformity, together with early osteodegenerative changes in the radiocarpal
joints. In his opinion, the long-term functionality of the plaintiff's left wrist joint
will be permanently compromised, which will materially impact upon the
plaintiffs ability to perform manual and physical activities requiring strong grip
strength. Dr Olivier concluded further that, although wrist arthrodesis may be
12
beneficial to the plaintiff overall, significant late complications could be
anticipated.
[28] Ms Kruger, the occupational therapist, furnished a detailed report assessing
the plaintiffs functional capacity in light of the orthopaedic sequelae described
by Dr Olivier. She opined that, due to the injuries sustained, the plaintiff struggled
to meet the physical, and strength demands of his pre-accident employment. She
attributed this to limited strength and pain in his left wrist, reduced capacity for
weight-bearing tasks, and a lack of postural flexibility arising from his lower-limb
injuries. On this basis, she concluded that the plaintiff is now primarily suited to
work involving the lifting and carrying of loads within the category of light
physical demands. She further opined that, should his symptoms worsen in future,
his capacity may be restricted to light or semi-sedentary forms of employment
only.
[29] Ms Blaauw, the biokineticist, confirmed the findings of Dr Olivier that,
post-accident, the plaintiff has sustained an average functional strength
impairment of 42%. As a result, she opined that the plaintiff would encounter
significant difficulties in performing the duties he was engaged in prior to the
accident, particularly those involving heavy physical activities. She is of the
opinion that the residual effects of the accident have left the plaintiff with serious
functional impairment and long-term functional disability.
[30] Dr Bredekamp, the counselling psychologist, opined that the plaintiff
suffers from residual symptoms of post-traumatic stress disorder, somatic
disorder, and depressive disorder. She stated that the plaintiff remains anxious
about his job security and harbours fears that he may not find alternative
employment. His injuries have adversely impacted his self-esteem, leaving him
with feelings of hopelessness and worthlessness. In Dr Bredekamp's opinion, the
13
plaintiff's injuries have serious long-term consequences and will likely continue
to impair his emotional and psychological functioning.
[3 I] Ms Colley, the industrial psychologist, assessed the plaintiff's pre- and
post-morbid earning potential. She concluded that the plaintiff will be an unequal
competitor in the labour market, owing to his compromised physical condition,
his psychological challenges, and the fact that he remains in need of future
medical and therapeutic interventions. In her opinion, these factors materially
diminish the plaintiff's employability, rendering him vulnerable to periods of
unemployment and restricting his capacity to secure and sustain competitive
work. She accordingly recommended that higher-than-average contingencies be
applied to the projected long-term scenario, in recognition of the plaintiffs
diminished employability and vulnerability.
[32] Mr Boshoff, the actuary from Munro Forensic Actuaries, relying on the
inputs of Dr Olivier and Ms Co1ley, prepared an actuarial assessment of the
plaintiffs loss of earnings. In respect of past loss of earnings, he applied a
contingency deduction of 5°/o to the plaintiffs projected uninjured earnings and
no contingency to the injured scenario. On this basis, he calculated the total past
loss of earnings in the sum of Rl 06 990.
[33] For future earnings, Mr Boshoff applied a contingency deduction of 15%
to the projected uninjured earnings and 5% to the projected injured earnings. On
this basis, he calculated the plaintiff's total future loss of earnings in the sum of
RI 266 710. In his opinion, the plaintiff's total loss of earnings amounts to
RI 373 700.
[34] In light of the expert reports referred to herein, what accordingly falls to be
determined is the measure of fair, reasonable, and appropriate compensation due
to the plaintiff. This determination entails the calculation of the amounts payable
in respect of past hospital and medical expenses, the quantification of future
14
medical expenses, the assessment of special damages in the form of loss of
earnings, the application of appropriate contingencies to those calculations, and
the award of general damages.
Past hospital medical expenses
[3 5] In the present matter, the plaintiffs claim in respect of past hospital
medical expenses are quantified in the sum of R200 000. It is trite that, in claims
arising from motor vehicle accident, the head of damages relating to past
hospital and medical expenses are governed by section 17(1) of the RAF Act. In
terms of that provision, the defendant is obliged to compensate claimants for all
proven medical and hospital costs reasonably incurred as a consequence of
injuries sustained in the accident.
[36] Our jurisprudence makes it plain that the plaintiff bears the onus of proving
the quantum of past hospital and medical expenses. Ordinarily, this is achieved
through the production of vouchers, invoices, or hospital accounts, corroborated
by medico-legal evidence establishing the nexus between the treatment and the
accident. In the absence of such substantiating documentation, the Court remains
enjoined to exercise its discretion in determining whether the plaintiff has
discharged the onus of proving past hospital and medical expenses.
[37] It is common cause that the plaintiff was admitted to Christiaan Barnard
Hospital following the accident, where he underwent surgery on his right leg and
remained hospitalised for approximately nine days. However, in his particulars
of claim, the plaintiff merely indicated that substantiating vouchers in support of
the amount claimed would be discovered in accordance with the Rules of Court.
Regrettably, no such vouchers were produced before this Court. In addition, no
confirmatory affidavit was furnished by the experts who rendered the services,
nor was any evidence adduced from the service provider as to the actual amount
disbursed in respect of the past medical costs.
15
[38] In the circumstances, and notwithstanding the absence of any opposition
by the defendant, this Court cannot simply assume the correctness of the quantum
claimed. The plaintiff bears the onus of establishing, on a balance of probabilities,
that the past hospital and medical expenses were indeed incurred and that they
were reasonable in relation to the injuries sustained.
[39] The failure to produce vouchers, invoices, or confirmatory affidavits from
the relevant medical practitioners or service providers by the plaintiff leaves the
Court without reliable evidence upon which to assess the precise amount
expended. The statutory obligation imposed upon the defendant by section 1 7( l)
of the Act is confined to proven medical and hospital costs. In the absence of such
proof, the Court is constrained to decline the claim under this head of damages.
[ 40] Accordingly, while the Court accepts that the plaintiff was hospitalised and
underwent surgery, the evidentiary deficiencies are fatal to the claim for past
medical expenses. The plaintiff has not discharged the requisite onus, and this
portion of the claim must therefore be disallowed.
Future medical and related expenses
[ 41] In respect of future medical expenses, the plaintiffs claim is for payment
in the sum of R250 000. Dr Olivier is of the opinion that an amount of
approximately R 187 000 should be allowed for wrist arthrodesis. He based this
estimate on the likelihood that significant late complications may arise, rendering
such intervention necessary.
[ 42] Dr Olivier further expressed the opinion that, following wrist
arthrodesis, the internal fixation should be removed, as its continued presence
may adversely affect the gliding mechanism of both the extensor and flexor
tendons. He estimated that an amount of R49 500 should be allowed for the
removal of the internal fixation once arthrodesis has been achieved. This figure,
16
according to him, encompasses the costs of pre-operative investigations, the
professional fees of the healthcare practitioners involved, hospitalisation, theatre
time and post-operative rehabilitation.
[43] While I note that the plaintiff has claimed future medical expenses in the
sum ofR2S0 000, it is significant that the plaintiff's actuary did not calculate such
expenses with reference to the orthopaedic surgeon's report. This omission is
understandable, given the inherent difficulty in predicting future medical costs
with precision, as circumstances may evolve over time.
[44] Nevertheless, the experts; Dr Olivier, Ms Blaauw, and Dr Bredekamp, are
ad idem that the plaintiff will never fully recover and will require ongoing
medical interventions. In my view, an undertaking by the defendant in terms of
section 17(4)(a) of the Act is warranted. In the result, the plaintiff is granted such
an undertaking in respect of his future medical and related expenses arising from
the collision, which shall be borne by the defendant. This approach avoids any
prejudice that the plaintiff may suffer were the award confined to a stipulated
amount.
Past and Future Loss of Earnings I Earning Capacity
[ 45] I now tum to consider the claim for loss of earnings and impairment of
earning capacity advanced by the plaintiff. The plaintiff contends that the
aggregate loss suffered, comprising both past and future earnings, amounts to
R2 000 000. The quantification of such loss depends heavily upon the unique
personal circumstances of the plaintiff, the nature of the injuries sustained, the
treatment administered and to be administered in the future, and most
significantly, the sequelae of those injuries upon his present and prospective work
opportunities and earnings.
17
[46] It follows that a claimant cannot succeed in such a claim absent proof of
actual patrimonial loss, for the loss of past earnings represents the income
foregone by the injured person from the date of the accident until the finalisation
of the matter. It is therefore incumbent upon the plaintiff to establish, by way of
credible evidence, that the injuries sustained prevented him from earning a
livelihood in the ordinary course, and further, what his earnings would have been
had he not been incapacitated. 10
[47] The Court, in assessing loss of earnings, proceeds by estimating what the
plaintiff would have earned had the accident not occurred, and comparing that
figure with his current earning potential. In Santam Versekeringsmaatskappy Bpk
v Byleveldt 11 it was emphasised that the assessment of damages for loss of
earnings necessarily involves an element of uncertainty. This inherent uncertainty
arises from the fact that the Court is required to project into the future, weighing
probabilities and contingencies, and applying its discretion to arrive at a figure
that is fair, reasonable, and just in the circumstances.
[48] Similarly in Southern Insurance Association v Bailey NO12 the Appellate
Division observed:
"Any enquiry into damages for loss of earning capacity is of its nature speculative.
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. It has open to it two possible approaches. One is for
the Judge to make a round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of mathematical calculations, on
the basis of assumptions resting on the evidence. The validity of this approach
depends of course upon the soundness of the assumptions, and these may vary from
the strongly probable to the speculative. It is manifest that either approach involves
the strongly probable to the speculative. It is manifest that either approach involves
guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a
•0 Gauntlett Corbett: The Quantum of Damages in Bodily and Fatal Injuries Vol I (1995) 39.
11 Sanlam Versekeringsmaatskappy Bpk v Byleveldt [1973] 2 All SA 173 (A); 1973 (2) SA 146 (A).
12 Southern Insu rance Association v Bail ey NO 1984 (l) SA 98 (AD) at l l3H- 114E.
18
non possumus attitude and make no award. In a case where the Court has before it
material on which an actuarial calculation can usefully be made, I do not think that
the first approach offers any advantage over the second. On the contrary, while the
result of an actuarial computation may be no more than an 'infonned guess' it has the
advantage of an attempt to ascertain the value of what was lost on a logical basis;
whereas the trial Judge's 'gut feeling' (to use the words of appellant's counsel) as to
what is fair and reasonable is nothing more than a blind guess."
[ 49] This dictum underscores the principle that actuarial evidence, while not
determinative, provides a rational framework within which judicial discretion is
exercised. The Court's ultimate task remains the ascertainment of the actual loss
suffered by the plaintiff, tempered by the recognition that the plaintiff cannot be
expected to furnish proof beyond what is reasonably possible in the
circumstances.
[50] In quantifying claims of this nature, it is customary to rely upon the
expertise of an actuary, who prepares actuarial calculations founded upon proven
facts and realistic assumptions concerning the future. The actuary's projections
are, in tum, dependent upon the reports of industrial psychologists, who
themselves rely upon information furnished by the claimant. Ultimately, the
award for future loss of earnings or impairment of earning capacity must rest upon
sound medical evidence and corroborating facts, thereby ensuring that the
quantification is both rational and just.
[51] It must, however, be emphasised that actuarial evidence, while valuable, is
not binding upon the Court. Such evidence must be weighed against the broader
factual and contextual matrix of each case. The Court accordingly retains the
discretion to determine the correctness of the assumptions upon which actuarial
calculations are based. Where any assumptions or portions of the calculations are
calculations are based. Where any assumptions or portions of the calculations are
rejected, the Court is obliged to furnish detailed reasons for doing so.
19
[52] In De Jongh v Du Pisanie NO13, the Supreme Court of Appeal reaffirmed
the wide discretion vested in trial courts to determine fair compensation. The SCA
noted that the trial court has a wide discretion to award what in the particular
circumstances consider right. It is bound by no rule except that it must act
judicially.
[53] Likewise, in Road Accident Fund v Guedes14, the court endorsed a 'robust'
approach to the assessment of future loss, particularly in cases of evidentiary
uncertainty as follows:
'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.15 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 16 (Van der
Plaats v South African Mutual Fire and General Insurance Co Ltd).17 "
[54] This judicial discretion extends also to the application of contingency
deductions, which constitute an essential component in the assessment of
damages. Contingencies are adjustments made to account for the uncertainties of
life, including the risk nf unemployment, illness, economic downturns, changes
in career path, or premature death. They recognise that a person's working life
rarely proceeds without interruption.
13 De Jongh v Du Pisanie NO [2004] ZASCA 43; [2004] 2 All SA 565 (SCA); 2004 (5J2) QOD 103; 2005 (5)
SA 457 (SCA) para 60.
14 Road Accident Fund v Guedes [2006] ZASCA 19; 2006 (5) SA 583 (SCA) para 8 & IO.
15 Ibid 12
14 Road Accident Fund v Guedes [2006] ZASCA 19; 2006 (5) SA 583 (SCA) para 8 & IO.
15 Ibid 12
16 lbid 12 at 116G-117A.
17 Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) l l 4F-1 l 5D.
20
[55] The question for determination by this Court is, firstly, whether, in light of
the expert opinions referred to above, the plaintiff has suffered a loss of income
as a direct consequence of the accident; and secondly, whether there exists a loss
of future earning capacity arising from his incapacity to perform the duties he
discharged prior to the accident.
[ 56] It is common cause that, but for the accident, the plaintiff would have been
expected to remain in employment until the age of 65 years, whilst continuing to
supplement his income through weekend jobs. The plaintiff's actuary has applied
a contingency deduction of 5% to his uninjured earnings, whilst applying no
contingency to his injured earnings. On this basis, the total past loss of earnings
has been calculated in the sum ofR106 990.
[ 57] The evidence tendered before this Court establishes that, following the
accident, the plaintiff was hospitalised for a period of 9 days. Thereafter, he was
discharged and recuperated at home, only returning to work in October. This
evidence was not disputed by the defendant. In the absence of any evidence to the
contrary, there can be no doubt regarding the plaintiff's loss of earnings during
this period. The Court is accordingly persuaded to accept the pre-morbid and
post-morbid postulations advanced by Mr Boshoff for the purposes of calculating
the plaintiff's past loss of earnings. In the result, the Court finds that the plaintiff
suffered past loss of earnings in the sum ofR106 990.
[58] In determining the plaintiffs future loss of earnings, the central enquiry is
whether there exists a diminution of his earning capacity arising from his
incapacity to perform the duties he discharged prior to the accident. The
assessment of future earnings is undertaken with reference to expert and actuarial
reports, subject always to the Court's discretion to account for the uncertainties
inherent in life.
21
[59] Such uncertainties are addressed through the application of contingencies
to both historical and projected earnings, thereby ensuring that the calculation
reflects a realistic approximation of the plaintiffs future prospects.
Compensation for future loss of earnings is accordingly assessed as a percentage
of the value of the loss, 18 calibrated to balance fairness to the plaintiff with the
prudence required in judicial quantification.
[60] The evidence establishes that the plaintiff is no longer able to perform the
duties he discharged pre-morbid, and that he is now restricted to light work.
Consequently, he will be compelled to retire prematurely, at approximately the
age of 45 years. It must, however, be borne in mind that post-morbid the plaintiff
continued to work, albeit in lighter duties, and earned a salary higher than that
which he received pre-morbid. Nevertheless, he has been compromised and
rendered an unequal competitor in the labour market, being no longer suited to
his pre-accident career. On this basis, Ms Colley recommended the application of
a contingency deduction significantly higher than the norm, in order to address
the risks attendant upon the plaintiffs diminished employability.
[ 61] The evidence before this Court establishes that, following the accident, the
plaintiff continued in employment until the expiry of his work permit. Although
he was unable to resume his pre-accident duties, his employer accommodated
him with alternative work. Not only did he resume employment, but his salary
increased from R4 500 to RS 900 per month. His employment·.was terminated
solely owing to an unrelated matter, namely the absence of a valid work permit,
rather than as a consequence of the accident. In my view, this indicates that, but
for the work permit difficulties, the plaintiff would have continued in
employment until the age of retirement, or at the very least until the age of 45
years, whilst supplementing his income through weekend jobs.
years, whilst supplementing his income through weekend jobs.
18 RJ Koch Damages for Lost Income {1984) at 31.
22
[62] Notwithstanding that the plaintiffs employment was ultimately lost due to
the expiry of his work permit, his post-morbid employment limitations
nonetheless justify his claim for loss of earnings, given his diminished work
capacity and curtailed career prospects. I accordingly find that the plaintiff is
entitled to compensation for the loss of earnings suffered as a direct consequence
of the accident.
[63] What remains for determination is the fair and reasonable amount to be
awarded, bearing in mind that post-morbid the plaintiff in fact earned a higher
income than he did pre-morbid. In quantifying the award, the Court must arrive
at a figure that reflects both the plaintiffs diminished earning capacity and the
realities of his post-morbid employment history. Of significance is the fact that,
after the accident, the plaintiff earned a higher salary than he did pre-morbid, and
that his eventual loss of employment was occasioned not by the accident but by
the expiry of his work permit.
[64] I note that Mr Boshoff applied a contingency deduction of 15% in the
plaintiffs uninjured earning, whilst applying 5% to his injured earnings. On this
basis, Mr Boshoff concluded that the plaintiffs future loss of earnings amounts
to Rl 266 710. Conversely, Ms Thomas, in advancing her submissions, urged the
Court should adopt a more stringent approach to contingency deductions.
Specifically, she proposed that a deduction of 50% be applied to the plaintiffs
future uninjured earnings, whilst a deduction of 10% be imposed upon his injured
earnmgs.
[65] I am not persuaded to adopt the proposal advanced by Ms Thomas,
particularly in light of the expert reports placed before this Court and the actuarial
calculations prepared. To do so without cogent justification would amount to a
speculative "thumb-suck" approach, which would undermine the probative value
of the expert evidence tendered to assist the Court. To disregard such evidence in
23
favour of conjecture would be inimical to the proper discharge of the judicial
function.
[66] While I have no difficulty with Mr Boshoffs conclusion, however, based
upon the evidence before this Court, it must nevertheless be observed that his
report does not appear to take account of the impact upon the probabilities of the
fact that the plaintiff ceased working of his own volition, owing to the absence of
a valid work permit. Notwithstanding that the plaintiff could not resume his
pre-morbid duties, he remained employed in alternative work and, significantly,
earned a salary higher than that which he received pre-morbid. I have no reason
to doubt that, but for the difficulties occasioned by the absence of a valid work
permit, the plaintiff would have perpetuated this trend for the remainder of his
working life, until reaching his peak and maintaining that level until retirement.
[67] Considering the aforementioned, the determination of contingencies will
entail consideration of factors such as the plaintiffs age, the extent of his
injuries, the prospect of securing alternative employment suited to his
diminished capacity, and his qualifications or lack thereof. The usual effect of
an adjustment based on contingencies is that the quantum of damages is reduced
by a percentage which may vary between 10% and 50%. 19 It is trite that the
determination of contingencies falls squarely within the discretion of the Court,
exercised subjectively yet guided by what is reasonable and fair on the
information placed before it. As articulated in Van Der Merwe v Road Accident
Fund,20 the detennination of loss of earnings and the incorporation of
contingencies falls within the ambit of judicial discretion. The Court must
accordingly decide upon the approach peculiar to the facts of the present matter.
19 See Van der Plaats v SA Mutual and Fire General Ins 1980 (3) SA 105 (A) at 114-5.
20 Van Der Merwe v Road Accident Fund (2025) ZA WCHC 158 para 20.
24
[68] I have considered that the plaintiff is a 41-year-old, falling within the
category of a semi-skilled worker. Owing to his injuries, he will be compelled to
retire prematurely at the age of 45 years, as postulated by Dr Olivier. The
calculations relating to loss of earnings are based upon his pre-morbid earnings.
At present, the plaintiff remains unemployed and is rendered an unequal
competitor in securing future employment. Even if he were to obtain employment
such opportunities would be confined to semi-sedentary duties, commensurate
with his diminished capacity. Against this conspectus of facts, it becomes
necessary to determine the appropriate percentage to be applied to the figure
projected by the plaintiffs actuary. This determination must be informed by
comparative jurisprudence, which demonstrates that Courts have consistently
applied higher contingency deductions in cases where plaintiffs face structural
socio-economic disadvantages.
[69] In Southern Insurance Association Ltd v Bailey, NO,21the Appellate
Division underscored the necessity of tailoring contingencies to the realities of
the claimant's situation. The Court held that a realistic assessment must be made
of the prospects of the hypothetical uninjured person and the actual injured
person, applying percentages that are fair in the circumstances. Similarly, in Road
Accident Fund v Guedes,22 the Supreme Court of Appeal affirmed that
contingency deductions must be fair, reasonable, and tailored to the specific
circumstances of the particular claimant.
[70] In Road Accident Fund v Kerridge23 The Supreme Court of Appeal
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 post-accident. The loss is the impact of the accident
21 Southern Insurance Association Ltd v Bailey, NO supra
22 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA)
22 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA)
23 Road Accident Fund 1' Kerridge 1024/2017 [2018] ZASCA 151
2S
upon the claimant, this being the difference between the monetary value of
earning capacity immediately prior to the injury and that which remains
immediately thereafter.
[71] In Brits v Road Accident Fund,24 the court applied a 15% pre-morbid and
35% post-morbid contingency differential. The court per Strijdom J stated:
"It was submitted by the plaintiff that the court must apply a 30% contingency
differential 15/45. / am of the view that in the circumstances of this case a 35%
contingency will be fair. Such a contingency takes into account that the plaintiff is still
employed and may remain in that position and also allows for the possibility that he
may be rendered unemployable ff he should lose his job. The result would be a 15%
pre-morbid contingency and a 35% post-morbid contingency. A differential of 20%
contingency." (Emphasis added)
[72] The above authorities illustrate the Court's willingness to calibrate
contingency deductions in a manner that reflects both the claimant's continued
employment and the real risk of future unemployability, thereby affirming the
principle that deductions must be fair and tailored to the claimant's
circumstances. In light of the jurisprudence set out above, I have considered
that, even though the plaintiff's employability has diminished, rendering him
vulnerable to periods of unemployment and restricting his capacity to secure
and sustain competitive work, he nonetheless retains the ability to engage in
employment, albeit restricted to light or semi-sedentary forms. I agree with the
recommendations of Ms Colley that, in the circumstances, higher than average
contingencies be applied to the projected long-term scenario, in recognition of
the plaintiffs diminished employability and vulnerability.
[73] In my considered view, the contingency deduction applied by Mr Boshoff
is unduly optimistic when measured against the plaintiffs prevailing
circumstances. A higher contingency deduction of35% is warranted, being more
circumstances. A higher contingency deduction of35% is warranted, being more
24 Brits v Road Accident Fund (54415/2018) [2025] ZAGPPHC 417 (11 April 2025) .
26
consonant with the evidentiary matrix before Court and reflective of the
prevailing socio-economic realities. The risks of future unemployment, early
retirement, or reduced work capacity are substantially greater for the plaintiff than
for an uninjured peer.
[74] In the premises, I consider a contingency deduction of 35% on the
uninjured future loss of earning scenario to be reasonable while retaining the 5%
contingency deduction on injured earnings. The resultant figure is a sum of
R918 590, which I regard as a fair and reasonable measure of compensation for
the plaintiffs loss of earnings.
[7 5] In the circumstances, it would be fair and reasonable to award the plaintiff
compensation for loss of earnings in the sum ofRl 025 580, made up as follows:
(a) Past loss of earnings in the sum of R106 990.
(b) Uninjured future loss of earnings in the sum of Rl 740 600, less a
contingency deduction of35%, resulting in a total of RI 131390.
( c) Injured future loss of earnings in the sum of R224 000, less a
contingency deduction of 5%, resulting in a total ofR212 800.
( d) In the result, the fair and reasonable total loss of earnings is the sum of
R918 590.
General damages
[7 6] I now tum to consider the issue of general damages suffered by the
plaintiff. The plaintiff seeks an award in the amount ofR500 000. The purpose of
such damages is to afford compensation for pain and suffering, loss of amenities
of life, disability, and disfigurement occasioned by the wrongful act.25 In
25 T. P. N. v Road Accident Fund [2024) ZAKZDHC 37 para 17.
27
determining non-patrimonial damages, the Court is guided by established
principles. In Sandler v Wholesale Coal Suppliers Ltd16 it was held that such
damages must be based on broad and equitable considerations. The same
principle was reaffirmed in Southern Insurance Association v Bailey NO. 27
[77] In Road Accident Fund v Marunga (Marunga),28 the Court stated that:
'Even though the courts have a wide discretion to detennine general damages and even
though it cannot be described as an exercise in exactitude, or be anived at according to
known formulae, a trial court should at the very least state the factors and circumstances
it considers important in the assessment of damages. It should provide a reasoned basis
for arriving at its conclusions.'
[78] In De Jongh v Du Pisanie29 the Supreme Court of Appeal dealt with issues
such as fairness and the Court's discretion in the context of previously decided
cases of similar facts and cited with approval, the following passage from Pitt v
Economic Insurance Co. Ltd30 where the following was stated:
'The court must take care to see that its award is fair to both sides - it must give just
compensation to the plaintiff but must not pour out largesse from the horn of plenty at
the defendant's expense.'
[79] In arriving at a fair and reasonable measure of compensation, the Court
must have regard to a broad spectrum of facts, including the nature, severity, and
permanence of the injuries sustained. Consideration must also be given to the
.4 ' \
impact of the injuries upon the plaintiffs daily life~
1
his age, personal
circumstances, and the guidance afforded by comparable awards m cases
involving similar injuries. Upon a holistic evaluation of these factors and
26 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
27lbid 12
it Road Accident Furul v Marunga (2003] ZASCA 19; (2003] 2 All SA 148 (SCA); 2003 (5) SA 164 (SCA)
para 33.
29 De Jong/, v Du Pisanie (2004] ZASCA 43; [2004) 2 All SA 565 (SCA); 2005 (5) SA 457 (SCA); 2004
(5J2) QOD 103 (SCA) paras 60-64.
:lO Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 287E-F.
28
circumstances, the Court is enjoined to determine what constitutes just
compensation for pain and suffering, disfigurement, and loss of amenities of
life,31 bearing in mind that the award must be fair to both parties.
[80] In Mgudlwa v Road Accident Fund32 a sum of R300 000.00 (which has a
2024 value ofR617 000.00) was awarded to a 34-year-old plaintiff. That plaintiff
suffered from fractures to the femur and tibia, causing the left leg to be 5 cm
shorter than the other leg due to deformity of the proximal end of the
femur. Surgery in the form of a total knee replacement and realignment of the
femur was anticipated. The severity of this plaintiffs injuries is far less than that
of the plaintiff in the present matter.
[81] In Mohlaba v Road Accident Fund, 33 the plaintiff was awarded an amount
of R540 000.00 which is R610 000 .00 at present value. The plaintiff suffered
serious injuries which had a permanent effect on his life, in particular his future
earning capacity. The injuries can be summarized as follows:34
'The plaintiff sustained a right proximal radius and ulna fracture. A bony ankylosis has
formed between the proximal radius and ulna. On clinical examination the plaintiff has
no pro-and supination of his forearm and his forearm remains in a fixed position 20
degrees pronation. The loss of the forearm pro- and supination of the plaintiffs
dominant hand will prevent him from working as a motorcycle mechanic. He has
suffered a significant loss of working capacity. He has suffered an injury to his right
ulna nerve resulting in loss of sensation in hls small and ring fingers and some Joss of
his intrinsic hand function'.
[82] In Ngomane v Road Accident Fund35, the claimant had severe fracture of
right humerus and right radius and ulna. The claimant was left with a
dysfunctional left arm. He had a weak grip on the right side, and he cannot lift
31 See Protea Assurance Company Ltd v Lamb (1971) 2 All SA 100 {A).
32 Mgudlwa v Road Accident Fund (2010] ZAECMHC 13; 2011 (6E3) QOD 1.
32 Mgudlwa v Road Accident Fund (2010] ZAECMHC 13; 2011 (6E3) QOD 1.
33 Mohlaba v Road Accident Fund (2016] ZAGPPHC 12; 2016 (7D4) QOD 1 (GNP).
34 Ibid para 6.
35 Ngomane v Road Accident Fund [2017] ZAGPPHC 401.
29
and carry heavy things and experienced headaches at times. The court awarded
R450 000 in general damages, the current value of which is approximately
R600 000.
[83] In assessing general damages, the Court considers the plaintiffs age, is 41
years of age, having been 35 years old at the time of the accident. The nature and
severity of the injuries, their permanence, and the impact upon his daily life and
occupational capacity. The fractures to the left radius and ulna, together with the
permanent compromise of the wrist joint, have materially diminished his ability
to perform manual labour, restricted him to light or semi-sedentary employment,
and left him with chronic pain and emotional vulnerability. During inclement
weather he suffers pain in the left arm and discomfort in the right leg,
necessitating the intake of medication. The extent of these injuries has not been
disputed by the defendant. The plaintiffs fear of travelling in motor vehicles, his
sense of uselessness arising from his inability to provide for his family, and the
enduring discomfort in his arm and leg, all constitute significant non-patrimonial
loss.
[84] Having regard to the plaintiffs circumstances, the permanence of his
orthopaedic injuries, the chronic pain, the emotional sequelae, and the diminished
quality of life, I am satisfied that an award of RSOO 000 constitutes fair and
reasonable compensation for pain and suffering, disfigurement, and loss of
amenities of life.
Costs
[85] What remains for consideration is the question of costs. The general
principle is that a party successful in litigation is entitled to recover its costs
incurred in the conduct of the proceedings. I find no basis upon which to depart
from this principle. The defendant is accordingly ordered to pay the costs of the
plaintiff.
30
The Order
[86] In the results, I make the following order:
(a) The defendant is declared 100% liable for the plaintiffs damages.
(b) The defendant shall pay to the plaintiff the sum of Rl 525 580 (one
million, five hundred and twenty-five thousand, five hundred and eighty
rand) in respect of past and future loss of earnings as well as general
damages.
( c) Past hospital and medical expenses claim dismissed.
( d)The defendant shall provide the plaintiff with an undertaking In terms
of section 17(4) (a) of the Road Accident Fund Act 56 of 1996, to
compensate the plaintiff for 100% of costs relating to the future
accommodation of the plaintiff in a hospital or nursing home or treatment
of or rendering of a service or supplying of goods to the plaintiff, after the
costs have been incurred and on proof thereof and arising from the collision
which occurred on 8 April 2020.
( e) The defendant is ordered to pay the plaintiffs taxed or agreed costs on
the High Court scale as between party and party including the costs set out
hereunder:
(i) Any costs attendant upon the obtaining of payment of the amount
referred to in paragraph 2 above.
(ii)Regarding the plaintiffs expert witnesses listed hereinbelow,
taxed or agreed fees, qualifying expenses and reservation fees
(including such travel expenses actually incurred), and the costs
attached to the procurement of medico-legal reports, any
addendum reports,joints minutes, as well as x-rays and scans and
other related costs. The latter costs shall include the costs of
attending all plaintiffs and defendant's medico-legal
31
examination, the amount of which will be taxed at the discretion
of the Taxing Master:
1. Dr. P.A. Olivier, orthopaedic surgeon
2. Ms. L. Kruger, occupational therapist
3. Mr. L. Blaauw, biokinetics
4. Dr. R. Bredekamp, counselling psychologist
5. Ms. N. Colley, industrial psychologist
6. Munro Forensic Actuaries
(iii) The taxed or agreed fees and costs of the plaintiff's legal
representatives in consulting with the experts and other witnesses
in preparation for the trial.
(iv) The taxed or agreed fees of the plaintiff's counsel in respect
of the preparation and trial, including the furnishing of advice on
evidence and drafting of heads of argument, on Scale C.
( f) The capital amount referred to in paragraph 2 is payable within 180 days
from service of this Court Order into the trust account of the plaintiff's
attorneys of record with the following details:
Account Holder Name:
Bank:
Branch:
Branch Code:
De Vries Shields Chiat Inc.
FNB Business
Portside
210651
(g) Payment of the taxed or agreed costs reflected above shall be made
within 14 calendar days of taxation/settlement.
32
(h) The interest in respect of both capital and costs will follow in terms of
section 17(3) of the Road Accident Fund Act (the capital interest is due
within 14 days following the date of taxation/settlement of the costs.
S. YAKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff: Adv du Toit
Instructed by: DSC Attorneys
For the Defendant: Ms. Thomas
Instructed by: State Attorneys