THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2605/18
In the matter between:
YAMKELA KOMBLEA PLAINTIFF
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA DEFENDANT
Coram: YAKE AJ
Heard: 13 May 2026
Delivered: Electronically on 7 September 2026
Summary: Damages claim - plaintiff fell out of a moving train - liability
conceded at 95% – future hospital, medical and related expenses not disputed–
loss of earnings and general damages remain for determination.
ORDER
1. The defendant shall pay to the plaintiff the sum of R13 238 2 18.70,
together with interest thereon from the date of service of summons to date
of final payment, as damages in respect of:
(a) R7 126 169.60 for future hospital, medical and other related
expenses.
(b) R4 112 049 in respect of past and future loss of earnings.
(c) R2 000 000 in respect of general damages.
2. The defendant shall pay the plaintiff’s taxed or agreed party-party costs
on High Court scale , including costs of all reasonable qualifying fees and
expenses of experts, the cost of obtaining medico -legal and all other expert
reports, the costs of experts who attended joint expert meetings, a s well as costs
of counsel on scale C.
JUDGMENT
YAKE, AJ
Introduction
[1] These are action proceedings in terms of which the plaintiff claims
damages against the Passenger Rail Agency of South Africa ( ‘the defendant’).
The issue of liability has been settled between the parties; it is therefore
unnecessary for the purposes of this judgment to narrate the circumstances of
the accident in detail . It suffices to mention that on 8 November 2017, at
approximately 07h00, the plaintiff, born on 27 August 1993, was conveyed as a
passenger aboard a Metrorail train operated by the defendant, travelling
between Esplanade and Cape Town stations. Whilst the train was in motion, and
owing to the overcrowded condition of the carriage, the plaintiff fell through an
open door of the said train.
[2] As a result thereof, he sustained the following injuries:
(a) A laceration to the left knee.
(b) A crush injury to the right lower leg and foot with multiple
fractures, as a result of the right lower leg and foo t being crushed
by the wheels of the train. The crush injury was debrided on
several occasions and attempts were made to stabilise the multiple
fractures without success and a below knee amputation of the right
leg was done on 13 November 2017.
(c) Severe emotional trauma
[3] The only issue falls for determination in these proceedings is the quantum
of damages claimed by the plaintiff. The plaintiff contends that he has suffered
damages under the following heads:
(a) Future hospital, medical and related expenses;
(b) Past and future loss of earnings; and
(c) General damages.
Analysis
[4] The plaintiff bore the overall onus of proving the damages allegedly
suffered. Such damages can only be established through tendering admissible
evidence. Unlike general damages, which are assessed in the exercise of judicial
discretion, special damages require precise quantification. It is often the case
that a party will adduce evidence of a technical nature in order to substantiate
such special damages including actuarial calculations, medico-legal reports, and
expert testimony.
[5] In proving the quantum of damages, the plaintiff filed on record a series
medico-legal reports and actuarial reports together with the joint minutes
compiled by respective experts. The medico -legal reports filed on record
comprise the following:
(a) Orthopaedic surgeons – Dr. I.P.S. Terblanche for the plaintiff and
Professor G. Vlok for the defendant;
(b) Occupational therapists – Ms. Elise Burns -Hoffman for the plaintiff
and Ms. Joan Andrews for the defendant;
(c) Industrial psychologist – Mr. E. Coetzee for the plaintiff;
(d) Counselling psychologist – Mr. D.G. Malherbe for the defendant;
(e) Orthotist – Mr. E. Rossouw for the plaintiff;
(f) Prosthetist – Mr. S. Du Plessis for the defendant;
(g) Physiotherapist – Ms. J Koep for the plaintiff;
(h) Clinical Psychologist – Ms. P. Tudin;
(i) Psychiatrists – Dr. L. Panieri-Peter for the plaintiff and Dr . Sutherland
for the defendant.
[6] The aforesaid reports were admitted into evidence in terms of Rule 38(2)
of the Uniform Rules of the Court and constitute the evidentiary foundation
upon which the assessment of damages must now be undertaken. It was further
agreed between parties that the joint minutes of the aforesaid experts be
admitted into evidence without further proof thereof , likewise in terms of Rule
38(2). Consequently, I now turn to consider each head of damages as claimed
by the plaintiff.
Future hospital, medical and related expenses
[7] The claim for future hospital and medical expenses have been resolved by
agreement between the parties. The only outstanding issue for determination is
the appropriate contingency deductions to be applied. T he plaintiff’s claim pre-
contingency amount s to R7 308 892. The figure was calculated in accordance
with paragraph 7 in the schedule by the defendant’s actuaries, Fero Actuarial
Consulting, dated 16 February 2026.1 The calculations expressly incorporate the
consideration that the plaintiff will require future stump revision procedures , as
recorded in the joint minutes of the orthopaedic surgeons Dr. Terblanche and
Professor Vlok, dated 24 February 2026.
[8] In those joint minutes, Dr. Terblanche and Professor Vlok, noted that the
plaintiff sustained a laceration to the left knee, which healed without
complication, and a crush injury to the right foot and lower leg with multiple
fractures culminating in a below -knee amputation. They are ad idem that the
plaintiff may periodically develop stump -related complications, including
soft-tissue difficulties. Should such complications not be adequately managed
by prosthetic modification and pressure care, a severe revision procedure may
become necessary. It is further agreed that the prosthesis will require
intermittent replacement due to wear and tear, and that the associated future
costs are both reasonable and foreseeable.
[9] The experts further caution that the plaintiff may develop psychological
disturbances or emotional difficulties, which ought to be managed by
appropriate mental -health professionals. Provided that the plaintiff remains
psychiatrically stable, he should be able to continue working as a semi -skilled
worker until retirement age. Nevertheless, ongoing emotional and psychological
1 Index D, page 151 to 161 of the defendant’s bundle
support from relevant experts will be required to sustain his functional capacity
and mitigate the risk of deterioration.
[10] Mr. Crowe SC submitted that a contingency deduction of 2.5% is to be
applied to the plaintiff’s claim in the amount of R7 308 892. On this basis, the
court is invited to award a post - contingency amount of R7 126 169.70. No
submissions were advanced by the defendant in respect of th is claim . The
application of contingency deductions falls within the discretion of the court.
[11] The application of contingency deductions falls within the discretion of
the Court. Although not frequently applied to medical expenses, contingency
deductions may properly be imposed in appropriate circumstances, having
regard to the uncertainties inherent in future medical interventions. This is so
because c ontingencies include any possible relevant future event which migh t
diminish or otherwise influence the extent of the plaintiff’s damage. 2 In a wide
sense, contingencies have been described as “ the hazards that normally beset
the lives and circumstances of ordinary people ”.3 In another formulation as
“unforeseen circumstances of life ”.4 In Buys v MEC for Health and Social
Development, Gauteng, 5 Fourie J applied contingency deductions for future
medical expenses, thereby affirming the principle that such deductions may be
warranted where the surrounding circumstances justify their application.
[12] In the present matter, and in considering the items enumerated in
paragraph 7 of the defendant’s actuarial report, I have had regard to the efficacy
of the therapies proposed, the likelihood that such programmes would be
2 See Erdmann v SANTAM Insurance Co Ltd 1985 3 SA 402 (C) 404-405; Burns v National Employers General
Insurance Co Ltd 1988 3 SA 355 (C) 365).
3 See AA Mutual Insurance Association Ltd v Van Jaarsveld 1974 4 SA 729 (A); Van der Plaats v SA Mutual
Fire & General Insurance Co Ltd 1980 3 SA 105 (A); Southern Insurance Association Ltd v Bailey 1984 1 SA
98 (A) 117.
4 See De Jongh v Gunther 1975 (4) SA 78 (W) 80F).
5 Buys v MEC for Health and Social Development of the Gauteng Provincial Government (16223/2013) [2015]
ZAGPPHC 530 (18 June 2015).
pursued to completion, and the diligence with which they might reasonably be
carried out. This exercise does not however purport to predict future medical
expenditure with precision. Rather, it is directed at determining in each instance,
whether the intervention is reasonable and, if so, to assess its reasonable cost. In
my view, a contingency deduction of 2.5 per cent, as advanced by the plaintiff,
is fair and reasonable in the circumstances. Accordingly, the plaintiff is awarded
future hospital, medical and related expenses in the sum of R7 126 169.70.
Past and future loss of earnings / earning capacity
[13] I now turn to consider the plaintiff’s claim for past and future loss of
earnings. In terms of the amended particulars of claim , dated 21 April 2026, the
plaintiff asserts that he suffered past loss of earnings in the amount of R 53 889,
whilst his future loss of earnings is quantified at R4 058 160.
[14] The quantification of such loss necessarily depends upon the plaintiff’s
personal circumstances, the nature of the injuries sustained, the treatment
already administered and that which remains to be undertaken, and, most
critically, the sequelae of such injuries upon his existing and prospective
capacity to engage in remunerative employment. The court’s task is thus to
determine, with due regard to the inherent uncertainties of life, the diminution in
earning capacity occasioned by the accident and to quantify the resultant
patrimonial loss.
[15] In undertaking this inquiry, the court must estimate, on the one hand, the
income which the plaintiff would, in the ordinary course, have earned had the
accident not occurred, and, on the other, his present earning potential in light of
the injuries sustained. This comparative exercise is conducted with reference to
the actuarial reports, which serve to assist the court in quantifying both past and
future loss of earnings and impairment of earning capacity by means of
structured projections. Such projections are founded upon objective criteria,
including the claimant’s age, life expectancy, career trajectory, and anticipated
retirement age. By employing this methodology, the actuary provides a coherent
and objective framework within which the court may evaluate the extent of the
plaintiff’s financial loss, thereby ensuring that the award is rationally grounded
and not speculative.
[16] The actuary’s projections are, in turn, predicated upon the reports of
industrial psychologists and a counselling psychologist , who themselves rely
upon information furnished by the claimant and corroborated by other expert
reports. Ultimately, the award for future loss of earnings or impairment of
earning capacity must be anchored in sound medical evidence and corroborating
facts, thereby ensuring that the quantification is both rational and just. It follows
that the plaintiff bears the burden of establishing, through credible evidence ,
that the injuries sustained have deprived him of the ability to earn a livelihood
in the ordinary course, and further, of demonstrating the earnings he would have
secured had he not been incapacitated.
[17] In Santam Versekeringsmaatskappy Bpk v Byleveldt ,6 it was emphasised
that the assessment of damages for loss of earnings necessarily involves an
element of uncertainty. 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 plaintiff’s future
prospects. Compensation for future loss of earnings is accordingly assessed as a
percentage of the value of the loss,7 calibrated to balance fairness to the plaintiff
with the prudence required in judicial quantification. This inherent uncertainty
arises from the fact that the court is required to project into the future, weighing
arises from the fact that the court is required to project into the future, weighing
6 Santam Versekeringsmaatskappy Bpk v Byleveldt [1973] 2 All SA 173 (A); 1973 (2) SA 146 (A).
7 RJ Koch Damages for Lost Income (1984) at 31.
probabilities and contingencies, and applying its discretion to arrive at a figure
that is fair, reasonable, and just in the circumstances.
[18] 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 rejected, the court is obliged to furnish detailed reasons for
doing so , thereby ensuring transparency in the exercise of its discretion and
fidelity to the principle of rational adjudication.
[19] In Southern Insurance Association v Bailey NO,8 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
guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a
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
the second. On the contrary, while the result of an actuarial computation may be no
more than an ‘informed guess’ it has the advantage of an attempt to ascertain the
8 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) at 113H–114E.
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.’
[20] Similarly, in De Jongh v Du Pisanie NO ,9 the Supreme Court of Appeal
(the SCA) 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 it considers right. It is bound by no rule
except that it must act judicially.
[21] Likewise, in Road Accident Fund v Guedes ,10 the court endorsed a
‘robust’ approach to the assessment of future loss, particularly in cases of
evidentiary uncertainty as follows:
‘It is trite that a person is entitled to be compensated to the extent that the person's
patrimony has been diminished in consequence of another's negligence. Such
damages include loss of future earning capacity (see for example President Insurance
Co Ltd v Mathews). 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 (see for example Southern Insurance Association Ltd v Bailey NO. 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.’
[22] The above -mentioned authorities underscore 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
judicial discretion is exercised. The court’s ultimate task remains the
ascertainment of the actual loss suffered by the plaintiff, tempered by the
9 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.
10 Road Accident Fund v Guedes [2006] ZASCA 19; 2006 (5) SA 583 (SCA) para 8.
recognition that the plaintiff cannot be expected to furnish proof beyond what is
reasonably possible in the circumstances.
[23] This judicial discretion extends also to the application of contingency
deductions, which constitute an essential component in the assessment of
damages. In must be reminded that contingencies are adjustments introduced to
account for the uncertainties of life, including the risk of unemployment, illness,
economic downturns, changes in career trajectory, or premature death. 11 They
recognise that a person’s working life seldom proceeds without interruption and
thus ensure that the quantification of damages reflects a realistic approximation
of the plaintiff’s future prospects.
[24] In the present matter, it is common cause that the plaintiff obtained a
National Senior Certificate (Grade 12) in 2012. Thereafter, in 2014, he enrolled
at Cape College for a certificate in primary care. He did not, however, complete
the qualification, having pursued only two years of study. During the period
2020 to 2021, he successfully completed a one -year course in business
administration at NQF level 4.
[25] The plaintiff commenced employment at a young age, initially working
as a trolley boy whilst still in primary school. In 2016, he secured employment
through an agency at the Cape Town International Convention Centre (CTICC)
as a general worker, where his duties entailed the movement of furniture,
including chairs and tables. He remained in that position until November 2017,
when the incident giving rise to these proceedings occurred. During this period,
he supplemented his income by providing massage services outside of his
working hours and on weekends. Following the incident, he resumed
employment at CTICC in August 2018, this time in a permanent capacity as a
11 Paragraph 11 supra
storeman. His duties require him to work eight -hour shifts, predominantly on
his feet and moving around.
[26] The plaintiff described the shifts as demanding and problematic, resulting
in pain and difficulty sleeping upon his return home. He experiences pain and
numbness upon removal of the stump, and although he previously relied on
painkillers and sleeping tablets, he has since discontinued their use. He
expressed the hope that, if provided with a more suitable prosthetist, his quality
of life would improve, as his current prosthesis is uncomfortable.
[27] The plaintiff further testified that the incident has affected him
emotionally. He experiences anger, has become antisocial, and tends to isolate
himself. As a consequence of these behavioural difficulties, he was admitted for
psychiatric treatment at Somerset Hospital and subsequently at Sea Point
Medical Centre.
[28] Ms. Burns-Hoffman and Ms . Andrews, the occupational therapists,
confirmed that the plaintiff presents with emotional confusion and obsessive
thoughts. His method of communication was at times convoluted and reflective
of inner turmoil. They opined that he meets the criteria of being employable in
the open market for work of a light physical nature, provided that any future
employment excludes tasks requiring significant balance or work at low levels.
They further concluded that his current work is neither suitable nor sustainable
in the longer term, and that continuation in such employment may result in
harm.
[29] Dr. L Panieri-Peter and Dr. Sutherland, the psychiatrists, both opined that
the plaintiff suffers from a very significant mental illness, inclusive of psychotic
features, which permeates every aspect of his functioning. His prognosis for
psychiatric recovery is poor, even with treatment. They confirmed that he is
physically unsuitable for his current employment and incapable of pursuing
further studies. The plaintiff requires urgent psychiatric admission following
threats of suicide. Both experts recommended medical boarding and estimated
that he is likely to lose his current employment within the next year. They are
further agreed that, should the plaintiff lose his present employment, it is
improbable that he will obtain or sustain future work.
[30] Mr. Coetzee, the industrial psychologist for the plaintiff, and Mr .
Malherbe, the counselling psychologist for the defendant, both opined that,
pre-morbid, the plaintiff would have pursued further formal education and, but
for the accident, would probably have progressed in his career. They agreed that
he is not physically suited to his current employment, which is sympathetic and
accommodative in nature, and that his continued tenure therein is unsustainable.
In consequence, they recommended that a more generic career and earnings
path be adopted. Both concurred that the plaintiff would have reached his career
plateau at a semi -skilled Paterson Grade B3 level between the ages of 40 and
50.
[31] The experts further agreed that, but for the accident, the plaintiff would
have continued to supplement his income through massage services from the
date of the incident until August 2018. Post -morbid, they opined that from
March 2023 he would have continued earning until March 2025, thereafter,
experiencing incremental increases until August 2038, when he would have
attained the age of 45 years. From that juncture, he would have remained
employed on a semi-skilled basis until retirement at the age of 65.
[32] The divergence between the experts arises in respect of the plaintiff’s
post-morbid earnings beyond August 2038 until his retirement in August 2058.
Mr. Coetzee opined that the plaintiff would have received a total package of
R316 000 per annum, whereas Mr . Malherbe contended that his remuneration
would have been limited to a basic salary of R244 000 per annum. It is striking
that the plaintiff presently earns on a total package basis. In these
circumstances, there is no rational basis for Mr . Malherbe’s reliance upon a
calculation confined to a basic salary. His approach disregards the plaintiff’s
current remuneration structure and fails to reflect the reality of his employment
conditions. In my view, Mr . Malherbe’s conclusion is unsustainable. The court
is enjoined to adopt assumptions that are consistent with the factual matrix
before it. Accordingly, I accept Mr . Coetzee’s projection as the more credible
and realistic basis for quantifying the plaintiff’s post-morbid earnings.
[33] In the circumstances, I find that the plaintiff has suffered past loss of
earnings in the amount of R53 889. This figure was agreed upon by both Mr .
Coetzee and Mr . Malherbe, and I discern no reason to apply any deduction
thereto. As regards future loss of income, I am persuaded by Mr . Coetzee’s
approach. The fair and reasonable method is to calculate the plaintiff’s earnings
on the basis of his total package, rather than a basic salary alone. Both actuaries
for the plaintiff and the defendant recommended that no contingency deductions
be applied to past loss of income, and that a 15% contingency deduction be
applied to future loss of earnings. I accordingly adopt this framework, which
balances actuarial precision with judicial discretion, and ensures that the
quantification of damages is both rational and just.
[34] As was stated in Van Der Merwe v Road Accident Fund ,12 the
determination of loss of earnings and the incorporation of contingencies falls
within the ambit of judicial discretion. The court must adopt an approach
peculiar to the facts of the present matter. I accordingly consider it appropriate
to apply a contingency deduction of 15% to the plaintiff’s future loss of
earnings. In the result, the fair and reasonable amount of future loss, after
contingency deductions, is in my view an amount of R4 058 160. Consequently,
contingency deductions, is in my view an amount of R4 058 160. Consequently,
12 Van Der Merwe v Road Accident Fund (7407/2022) [2025] ZAWCHC 158 (3 April 2025) para 20.
I find that the fair and reasonable total of past and future earnings suffered by
the plaintiff amounts to R4 112 049.
General damages
[35] I now turn to consider the issue of general damages suffered by the
plaintiff. The plaintiff seeks an award in the amount of R2 500 000, whereas the
defendant contends that an award of R800 000 would constitute appropriate
compensation. It is trite that the purpose of general damages is to afford
compensation for pain and suffering, loss of amenities of life, disability, and
disfigurement occasioned by the wrongful act.13
[36] In assessing such damages, the court is vested with a wide discretion to
award what it considers fair and adequate compensation, having regard to all the
relevant facts and circumstances of the case.14 In determining non -patrimonial
damages, the court is guided by established principles. In Sandler v Wholesale
Coal Suppliers Ltd,15 it was held that such damages must be assessed upon
broad and equitable considerations. The same principle was reaffirmed in
Southern Insurance Association v Bailey NO,16 and further endorsed in Minister
of Safety and Security v Seymour, 17 where the court emphasised that an award
must be fair to both parties.
[37] In Road Accident Fund v Marunga (Marunga),18 the SCA stated that:
‘Even though the courts have a wide discretion to determine general damages and
even though it cannot be described as an exercise in exactitude, or be arrived 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.’
13 T. P. N. v Road Accident Fund (11807/2017) [2024] ZAKZDHC 37 (11 June 2024) para 17.
14 Road Accident Fund v Marunga [2003] ZASCA 19; 2003 (5) SA 164 (SCA) para 23.
15 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
16 Fn 8 supra.
17 Minister of Safety and Security v Seymour [2006] ZASCA 71; 2006 (6) SA 320 (SCA) at 325B.
17 Minister of Safety and Security v Seymour [2006] ZASCA 71; 2006 (6) SA 320 (SCA) at 325B.
18 Road Accident Fund v Marunga [2003] ZASCA 19 ; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164 (SCA)
para 33.
[38] In De Jongh v Du Pisanie ,19 the SCA 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. Ltd,20 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.’
[39] In the present matter, there is no doubt that the plaintiff has sustained
damages. It must further be borne in mind that no monetary award can undo the
harm that has been suffered. Both parties have relied upon Mnguni v Road
Accident Fund,21 and Mthethwa v Road Accident Fund,22 in support of their
respective contentions.
[40] In advancing his proposition, Mr . Ramaili SC contends that in Mnguni
the plaintiff suffered severe brain injuries together with an amputation of the
right lower leg, for which damages in the sum of R700 000 were awarded in
2010. He submits that the present matter is distinguishable, in that the plaintiff
did not sustain any severe head or brain injuries.
[41] Counsel further relies upon Mthethwa, where the plaintiff suffered an
above-knee amputation of the left leg and an upper -arm amputation, and was
awarded damages of R800 000. He argues that the injuries in Mthethwa likewise
differ from those in the present matter, in that here the plaintiff suffered the
amputation of a single limb only. In the result, counsel submits that an award in
the amount of R800 000 would be appropriate in the circumstances.
19 De Jongh 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.
20 Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 287E-F.
21 Mnguni v Road Accident Fund 2010 (6E2) QOD 1 (GSJ).
22 Mthetwa v Road Accident Fund 2010 (6E2) QOD (GSJ).
[42] In countering the proposition advanced by Mr . Ramaili, Mr . Crowe
contends that the defendant has overlooked the intervening effects of inflation
upon the quantum of the aforesaid authorities, noting that the present -day
inflation-adjusted values thereof are R2 024 000 and R1 743 000 respectively. In
this regard, reference was made to Corbett’s The Quantum of Damages.23
[43] Counsel further argued that, while differences exist between the
orthopaedic injuries and amputations in Mnguni and Mthethwa, the psychiatric
consequences suffered by the plaintiff in the present matter elevate its severity.
The plaintiff, counsel submits has endured profound emotional trauma, has been
diagnosed with a severe mood disorder with psychotic features and a comorbid
disorder, and faces a highly guarded psychiatric prognosis.
[44] Mr. Crowe further submitted that these psychiatric sequelae, which
impair the plaintiff’s functioning and render his recovery poor, place the present
case within a severe category warranting higher general damages. He proposes
that an award in the range of R2 000 000 to R2 250 000 would be appropriate.
In support of this contention, counsel emphasised that the plaintiff was 24 years
old at the time of the incident and is presently 32 years old. He underwent a
below-knee amputation of the right leg, suffers severe emotional trauma as
confirmed by the psychiatric experts, and faces the real prospect of losing his
employment within the next year notwithstanding ongoing treatment.
[45] In arriving at a fair and reasonable measure of compensation, I have had
regard to a broad spectrum of facts, including the nature, severity, and
permanence of the injuries sustained. I take cognisance of the fact that the
plaintiff is still young, and that his life has been drastically altered by the
incident. Prior thereto, he was healthy and engaged in studies to advance his
career. Consideration must also be given to the impact of the injuries upon the
career. Consideration must also be given to the impact of the injuries upon the
23 Corbett’s The Quantum of Damages (Vol 7) at pages lxix to Ixxi and to (Vol 9) at pages lxix to lxx.
plaintiff’s daily life, his age, personal circumstances, and the guidance afforded
by comparable awards in cases involving similar injuries. Upon a holistic
evaluation of these factors and circumstances, the court is enjoined to determine
what constitutes just compensation for pain and suffering, disfigurement, and
loss of amenities of life, bearing in mind that the award must be fair to both
parties.
[46] While I note that Mnguni and Mthethwa are distinguishable from the
present matter, what is common to all is that in each case the plaintiff’s leg was
amputated, a feature similar to the present circumstances. However,
notwithstanding the psychiatric consequences in the instant matter, the
circumstances in Mnguni were more severe, as the plaintiff therein suffered a
significant brain injury.
[47] In the result, taking into account the psychiatric sequelae and the
below-knee amputation sustained by the plaintiff, together with the other
injuries endured, including pain and suffering, I am of the view that an award of
R2 000 000 constitutes fair compensation in relation to general damages. This
conclusion is reached by making comparisons with the compensation awarded
in both Mnguni and Mthethwa, having regard to the year of the awards in those
cases. According to the Quantum Yearbook of RJ Kock 2026 , the current
adjusted value in Mnguni is R2 042 200, while in Mthethwa it is R1 748 000.
Consequently, I am satisfied that an award of R2 000 000 constitutes fair and
reasonable compensation for general damages.
Costs
[48] What remains for determination is the question of costs. The general
principle is that a litigant who is successful in the proceedings is entitled to
recover the costs reasonably incurred in the conduct of such litigation. The
plaintiff seeks an order for costs of suit together with interest from the date of
summons to the date of judgment, and further interest from the date of judgment
until the date of payment. Reliance was placed on Passenger Rail Agency of
South Africa v Bisschoff N.O. obo Reyners ,24 where the court distinguished
between pre- and post-judgment interest. Pangarker AJ (as she then was) held
that the in duplum rule finds no application to pre -judgment interest and
accordingly confirmed that PRASA was liable for both pre - and post-judgment
interest. No submissions were advanced by the defendant in relation to this
aspect. In the result, I find no basis upon which to depart from the general
principle that costs follow the result , having regard to the authority of the
Bisschoff matter in relation to the award of interest. The defendant is
accordingly ordered to pay the plaintiff’s costs of suit, together with interest as
sought.
Order
[49] In the results, I make the following order:
(a) The defendant shall pay to the plaintiff the sum of R13 238 218.70,
together with interest thereon from the date of service of summons
to date of final payment, as damages in respect of:
(i) R7 126 169.60 for future hospital, medical and other related
expenses.
(ii) R4 112 049 in respect of past and future loss of earnings.
(iii) R2 000 000 in respect of general damages.
(b) The defendant shall pay the plaintiff’s taxed or agreed party-party
costs on High Court scale , including costs of all reasonable
24 Passenger Rail Agency of South Africa v Bisschoff N.O. obo Reyners.
qualifying fees and expenses of experts, the cost of obtaining
medico-legal and all other expert reports, the costs of experts who
attended joint expert meetings, a s well as costs of counsel on scale
C.
_____________________________________
S YAKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff: M Crowe SC
Instructed by: Jonathan Cohen & Associates
For the Defendant: M Ramaili SC
Instructed by: Dabishi Nthambelini Inc