Dawood v Road Accident Fund (1913/2014) [2019] ZAFSHC 134 (1 August 2019)

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The Plaintiff in this case sustained personal injuries arising out of a motor vehicle collision.  As such, the Plaintiff instituted an action for damages against the Road Accident Fund in respect of same, and the issue to be determined was the quantum for loss of earning capacity.

In terms of the Road Accident Fund Act 56 of 1996 (“the Act”), the Defendant is obliged to pay for all loss or damage wrongfully incurred by a victim of an accident in a motor vehicle.

The Plaintiff and four other witnesses testified on his behalf.

In his testimony, the Plaintiff stated that he had left school at a young age and obtained a code 8 driver’s licence. He was employed as a driver at a Deboning Company and in addition to his duties as a driver, he was required to package meat, load and offload boxes and crates and pull heavy trolleys. He further testified that the collision resulted in his left femur being injured and screws being inserted into his left knee and as such he was unable to control the clutch whilst driving. He could also not stand for more than ten minutes, nor carry heavy objects. He further stated that he was ultimately dismissed from his employment. 

The second witness who testified was the Plaintiff’s supervisor at the time of the accident. He stated that the Plaintiff’s duty was only related to driving. He also testified that the Plaintiff was not dismissed but rather retrenched by his employer as the business went into liquidation. The presiding officer hearing the case accepted his testimony.

The third witness was an industrial psychologist whose testimony was based on reports by the Plaintiff’s orthopaedic surgeon and occupational therapist. He opined that the Plaintiff’s job was lighter and less physical, although the Plaintiff was less productive in his work after the accident. He further recommended that the Plaintiff be regarded as unemployable. The presiding officer hearing the case accepted his testimony.

The fourth witness, the occupational therapist, confirmed her report in that the Plaintiff was a driver whose duties included loading and offloading medium to heavy deliveries. She recommended that the Plaintiff only do sedentary type of work and concluded that the Plaintiff could still drive but advised against same. The presiding officer accepted certain parts of her testimony.

The fifth witness, a medical doctor testified that the Plaintiff would not be able to perform strenuous weight bearing activities and that the Plaintiff’s injuries resulted in long terms functional restrictions. In assessing the quantum for loss of earning capacity, the presiding officer applied the principle set out in Southern Insurance Association Ltd v Bailey NO, where the method of actuarial computation was adopted in view of the fact that judges have “a large discretion to award what they consider to be right”.


Reference was also made to the case of AA Mutual Insurance Association Ltd v Maqula where it was stated that a trial court has a wide discretion to award what it considers to be a fair and adequate compensation to the injured party for his bodily injuries.


It was held that the Plaintiff established a prima facie case on a balance of probabilities, and was entitled to a sum of money which would place him in a position he would have been in had the accident not taken place.  

The court agreed that the contingency deduction (of 5% and 15%) on uninjured past and future earnings was correctly applied, but also applied a 15% deduction on injured future earnings.  


In concluding, the Defendant was liable for payment to the Plaintiff for loss of earnings and was ordered to furnish the Plaintiff with an undertaking in terms of section 174(4)(a) of the Act, to cover the costs of future medical expenses incurred by the Plaintiff as a result of the injuries sustained by him in the said motor vehicle collision.


Should the victim prove a prima facie case, a Defendant will be obliged to pay for all loss or damage, (uninjured past and future earnings and injured future earnings) wrongfully incurred by such victim of an accident in a motor vehicle.

Written by Jayna Hira and supervised by Charlotte Clarke

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