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[2] As a result of the accident, the Plaintiff suffered serious injuries which have been
accepted as such by the Defendant (“the Fund”) . I fully address the injuries and
the sequelae below when I deal with general damages and loss of income.
[3] The Plaintiff’s particulars of claim seek the following relief :
3.1 Future medical expenses ;
3.2 Past loss of income R4 000 000.00;
3.3 Future loss of income R4 000 000.00; and
3.4 General damages R1 000 000.00
The trial
[4] At the trial , I was informed by the parties that the only outstanding issue s for
determination is the question of general d amages, loss of income and future
medical expenses.
[5] I was further informed that the issue in dispute regarding loss of income is
contingencies. Therefore, the parties requested that the matter be decided on the
papers and with reference to expert reports.
[6] The Plaintiff produced expert reports of various experts which I deal with later
hereunder when I deal with the question of loss of income.
[7] The Defendant, despite having obtained expert opinion and reports, did not
produce same during the trial thus leaving the Plaintiff’s expert evidence
uncontroverted.
[8] The Plaintiff’s trial oral submissions may be summarised as follows:
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8.1 The Plaintiff was employed by Take A Lot as a Fleet Controller prior to
the Accident.
8.2 He was earning R 12 064.34 per month and R144 772.08 per annum.
Counsel referred me to the industrial psychologist’s (“IP”) report,
paragraph 7.4.3.6, on case lines, section 40 page 26.
8.3 The Plaintiff’s salary dropped after the accident. Counsel referred me to
the IP’s report on case lines, section 40 page 26. According to the report
at paragraph 7.4.3.6, the salary dropped to R 9 953.65 per month and
R119 443.08 per annum. As corroboratio n, counsel referred me to the
Plaintiff’s payslip on case lines, section 10.
8.4 Counsel referred me to the actuarial report on case lines, section 41.
Counsel noted that the actuary did not apply contingency calculations.
8.5 Regarding contingencies, counsel further asked me to apply lower
contingencies and submitted that higher contingencies are not
reasonable in the circumstances of this matter.
8.6 Counsel concluded by highlighting the Plaintiff’s injuries and submitted
that the sum of R1 5000.000 for general damages would constitute fair
compensation. Counsel further asked for costs including costs for
reserved experts on the 23rd of February 2026.
[9] The Parties agreed to submit their closing submissions in written form as opposed
to oral submissions.
[10] The Plaintiff’s written submissions are a summary of the oral submissions, but
with emphasis on case law authorities regarding contingencies and general
damages. They conclude by asking for a total sum of R 2 357 200 for loss of
income and R 1 5000 000 for general damages.
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[11] The Defendant’s oral submissions may be summarised as follows:
11.1 Counsel disputed the Plaintiff’s payslips and submitted that they do not
reflect a reduction of his salary. She submitted that there was only a
reduction of R 1000.00 in April and May 2023 and then an increase in
June 2023.
11.2 The Plaintiff went back to his old position and was further promoted to
team leader. The Plaintiff lost his job for reason unrelated to the injuries.
11.3 Regarding contingencies, counsel asked me to apply a 25% differential.
11.4 Regarding general damages, she submitted that the injury was
moderate and was treated surgically. She suggested a sum of R
700 000.00 for general damages.
11.5 In response to the Plaintiff’s submission on reserved costs for experts,
she submitted that the postponement was by agreement and that
Plaintiff’s counsel conceded that some of its reports needed
adjustments.
[12] The Defendant’s written closing submissions focused on contingencies and made
reference to case law. No submissions are made regarding general damages.
Most of the submissions are a summary of the trial oral submissions.
General damages
[13] It is trite that the determination of general damages falls within the discretion of a
Court exercised judiciously (Minster of Security of Safety v Seymore 2006 (6) SA
320 SCA) . Furthermore, in the exercise of its discretion a Court is entitled to rely
on previous comparable awards.
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[14] In considering a just and fair amount for general damages, I have considered the
following:
14.1 The Plaintiff suffered a moderate head injury;
14.2 The neurosurgeon and the maxillofacial surgeon both certify that the
Plaintiff qualifies under the narrative test under the grounds of
permanent serious disfigurement and severe long term mental or
behavioural impairments. In addition, the psychiatrist diagnosed the
Plaintiff with depressive mood . The clinical psychologist diagnosed the
Plaintiff with impaired attention, working memory and concentration.
Lastly, the plastic surgeon found that the Plaintiff suffered from
irreversible facial and sculp scarring.
[15] The Plaintiff’s counsel, both in his oral and written submissions contend ed for an
amount of R1 500 000.00 and relied on comparable case law i.e. Claassens v
Road Accident Fund [2019] ZAGPPHC 471 and Nsele v Road Accident Fund
[2021] ZAGPPHC 455. And Roupe v RAF QOD 84-52 EPE.
[16] The Defendant’s counsel did not dispute the submissions made by the Plaintiff’s
counsel with reference to any comparable case law on the question of damages
in his written submissions. He focussed on loss of income.
[17] I have compared the injuries of the Plaintiff with previous cases that the Plaintiff’s
counsel referred me to. I found that the injuries in those cases were a bit more
severe, not that I am downplaying the injuries of the Plaintiff which include
permanent and visible scarring and the other impairments as stated by the various
experts.
[18] Having considered all the above factors, I find that a fair and adequate
compensation for general damages is the sum of R 1 000 000 as claimed in the
Plaintiff’s particulars of claim. I would have awarded the Plaintiff a slightly higher
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amount had the R 1 500 000 which the Plaintiff’s counsel belatedly contended for
in its oral and written submissions. Sadly, I am constrained by the pleadings.
Loss of earnings
[19] The parties informed me that the question on loss of earnings only relates to future
loss of income.
[20] Once again the question of contingencies rests with the Court’s discretion and the
discretion must obviously be exercised judiciously and must be based on the best
available evidence. These principles can be found in the SCA decision of the RAF
v Kerridge 2019 (2) SA 233 SCA at paragraphs 42 and 44 as correctly stated in
the Defendant’s written closing submissions.
[21] Having considered the expert reports and the evidence, I find that the differential
of 25% as suggested by the Defendant is appropriate for the following reasons:
21.1 Firstly, b oth the industrial psychologist and the occupational therapist
agreed that the Plaintiff’s loss of employment is not related to the
accident and the injuries.
21.2 Secondly, according to the occupational therapist ,the Plaintiff still meets
the physical demands of his job
21.3 Thirdly, the impairment in relation to the Plaintiff’s cognitive and
vocational capabilities does not constitute an inability to perform his
functions. I accept that that has an impact in terms of competition with
other unaffected persons.
21.4 Fourthly, the occupational therapist also found that the Plaintiff, with
reasonable accommodation , would still maintain meaningful earning
capacity despite the impairments.
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21.5 Lastly, I have also considered the fact that the cognitive and
psychological impairment s have reduced the Plaintiff’s ability to learn
new skills as per the occupational therapist’s report.
[22] In the premises, I align myself with the calculations of the Defendant as illustrated
in the calculation table, which I reproduce hereunder:
Capital value of future earnings:
Uninjured Injured Loss of Earning
Future R2 434 900 R2 434 900
Minus 15%40% R 365 235 R 973 960
R2 069665 R1 460 940 R 608 714
Future medical expenses
[23] Both parties agreed that the Plaintiff is entitled to an undertaking in terms of section
17(4)(a) of the Act in respect of future psychiatric and psychological treatment,
medication and hospitalisation.
[24] In the circumstances, I make the following order:
1. The Defendant shall pay the Plaintiff the sum of R1 000 000 (One Million
Rands) with 10.5% interest tempore morae for general damages;
2. The Defendant shall pay the Plaintiff the su m of R 608 714 (Six Hundred and
Eight Thousand, Seven Hundred and Fourteen Rands) with 10.5% interest
tempore morae for loss of income;
3. The Defendant shall furnish the Plaintiff with an undertaking in terms of section
17(4)(a) of the Act for future treatment, hospitalisation or accommodation in a
nursing home and for the rendering of any service arising from the Plaintiff’s
injuries.