Moloi v Road Accident Fund

Ms Mananyana Jane Moloi (the applicant) sustained a head injury with multiple open wounds to her face and soft tissue injuries on her right lower limbs in a motor vehicle accident on 7 August 2016. She instituted action against the Road Accident Fund (RAF) for damages totaling R8 711 483, comprising general damages R900 000, future medical expenses R200 000, and past and future loss of earnings R7 611 483. The merits were settled at 100 percent in favor of the applicant, and general damages were settled at R800 000. At the time of the accident, the applicant was a student. By the time of trial, she had completed a degree in Accounting with UNISA, registered for an honors degree, and secured employment as an articled clerk at an accounting firm where she had worked for three months. The applicant did not testify personally at trial. She relied on expert evidence from a clinical psychologist (Ms Stanton), an industrial psychologist (Dr Fourie), an educational psychologist (Ms Gibson - by affidavit), and an actuary (Mr Immerman). The clinical psychologist assessed the applicant two years after the accident and four years before trial, and conceded her report was outdated. The high court granted past loss of earnings but dismissed the claim for future loss of earnings. The full court dismissed the applicant's appeal and refused leave to appeal. The applicant then sought special leave to appeal to the Supreme Court of Appeal.

• Whether the trial court's rejection of unchallenged expert evidence on future loss of earnings constituted a misdirection
• Whether special leave to appeal should be granted in circumstances where the application does not properly set out grounds for special leave
• Whether the applicant established reasonable prospects of success on appeal
• Whether special circumstances exist to justify granting special leave to appeal
• What evidential requirements must be met to prove future loss of earning capacity in a delictual claim based on psychological and emotional injuries
• Whether expert evidence on future loss of earnings is sufficient without personal testimony from the claimant and evidence from the claimant's employer

The application for special leave to appeal against the judgment and order of the full court of the Free State Division of the High Court Bloemfontein was dismissed with no order as to costs.

The binding principles established are: (1) In claims for future loss of earning capacity based on psychological or emotional injuries, where the claimant is employed at the time of trial, expert evidence must include objective evidence from the claimant's employer regarding actual work performance and future prospects - the failure to obtain such evidence when it is the most objective available evidence may be fatal to the claim. (2) Expert evidence on future loss of earnings must be based on current assessments; outdated expert assessments conducted years before trial have marginal probative value and cannot form a reliable basis for determining future earning capacity. (3) Where a claim for loss of earning capacity is predicated on subjective sequelae such as cognitive difficulties, emotional trauma and loss of confidence, the claimant's personal testimony is essential - expert evidence alone is insufficient, particularly where the claimant is best placed to provide evidence regarding treatment, improvement of condition, and impact on work performance. (4) Expert opinions based on hearsay evidence from other experts who are not called to testify and whose reports are not properly admitted into evidence have reduced probative value and may be rejected, as the opposing party is prejudiced by inability to cross-examine. (5) If the factual foundation upon which expert opinion is based is incorrect or unproven, the expert opinion may be fatally flawed. (6) For special leave to appeal, an applicant must establish both reasonable prospects of success AND special circumstances - the existence of reasonable prospects is necessary but insufficient. (7) The substantial quantum of a claim is not, in itself, a special circumstance justifying special leave to appeal; the focus must be on legal or public importance of issues rather than monetary value. (8) Applications for special leave to appeal must comply with Rule 6(5) of the SCA Rules and specifically address the distinct requirements for special leave; mere dissatisfaction with the lower court's decision or general arguments on the merits are insufficient.

The court made the following non-binding observations: (1) The trial judge's direct observation from the bench that the applicant did not display any significant facial scarring contradicted expert reports citing scarring as affecting her confidence - in the absence of the applicant's testimony to demonstrate this impact, courts are entitled to rely on their own observations. (2) The list of special circumstances that may justify special leave to appeal (substantial point of law, very strong prospects of success amounting to manifest denial of justice if refused, great importance to parties or public) is not closed, but mere dissatisfaction with lower court decisions is insufficient. (3) Special leave to appeal is not intended to afford litigants a further attempt to procure relief already refused by lower courts. (4) When assessing claims for loss of earning capacity, historical career performance, though relatively short, is vital in determining future earnings potential. (5) The court noted with implicit criticism that Ms Gibson's report was referred to during oral evidence without having been formally admitted into the record in terms of Rule 38(2) of the Uniform Rules of Court. (6) A psychological disorder such as anxiety and depressed mood can become chronic after six months and plateau two years after an accident (becoming stabilized and permanent), but when treated, such diagnosis can be ameliorated - highlighting the importance of evidence regarding treatment and improvement.

This case is significant in South African personal injury litigation for establishing important principles regarding the proof of future loss of earning capacity claims, particularly where the claim is based on psychological and emotional injuries rather than purely physical disabilities. The judgment clarifies that: (1) expert evidence on future loss of earnings must be grounded in current, objective evidence, particularly evidence from the claimant's actual employer where the claimant is employed; (2) where a claim is based on subjective sequelae such as emotional trauma, cognitive difficulties and loss of confidence, the claimant's personal testimony is essential and cannot be substituted entirely by expert evidence; (3) outdated expert assessments have marginal probative value and cannot form the basis for projections about future earning capacity; (4) expert opinions based on hearsay evidence from other experts who do not testify are of little value; (5) courts will not accept expert evidence that is divorced from objective reality; and (6) the substantial quantum of a claim does not constitute a special circumstance justifying special leave to appeal. The case reinforces the principle that the onus to prove loss rests on the claimant and must be discharged on a balance of probabilities with proper evidential foundation. It also provides guidance on the proper approach to applications for special leave to appeal, emphasizing compliance with the Rules and the need to specifically address the distinct requirements for special leave rather than merely arguing the merits.