Prince Kgosi Khambule v Road Accident Fund

The plaintiff, born 11 May 1991, instituted action against the Road Accident Fund (RAF) for damages suffered as a result of injuries sustained in a motor vehicle accident on 19 June 2013 caused by the negligent driving of the RAF's insured driver. The plaintiff claimed he sustained chest injury, injuries to both shoulders, back injury, head injury, neck injury and multiple wounds. His claim was that he intended to become a firefighter but the injuries made it impossible to pursue this career. Prior to the accident, he had failed Grade 12 in 2009, completed a basic ambulance assistance course in 2010, passed Grade 12 in 2012, and attended GEFSTA Fire Training Academy from January to April 2013 (did not complete). After the accident he operated an internet café from home in 2013-2014, attended GEFSTA again in January-May 2015 (successfully completed), worked as unpaid volunteer firefighter at Orange Farm Firehouse in 2016-2017, and in May 2018 passed an Ambulance Emergency Assistant course and was registered by HPCSA. Negligence was settled between the parties on 15 March 2018 with RAF accepting 100% liability for proven or agreed damages.

• Whether the plaintiff's claim for past loss of income based on being unable to complete firefighter training was sustainable given he discontinued the course before the accident
• What the appropriate contingency deductions should be in calculating past and future loss of earnings
• Whether the plaintiff would have achieved the projected career progression as a firefighter
• The quantum of damages for past and future medical expenses and past and future loss of income

The court ordered: (1) Plaintiff's applications under Rules 38(2) and 33(4) granted; (2) General damages postponed sine die; (3) Defendant liable for 100% of proven delictual damages; (4) Defendant to pay capital amount of R2,278,122.21 comprising: past medical expenses R77,152.21, past loss of earnings R746,675.00, future loss of earnings R1,454,295.00; (5) Payment by direct fund transfer into plaintiff's attorneys' trust account; (6) Defendant to furnish unlimited Section 17(4)(a) Undertaking for future medical costs; (7) Defendant to pay plaintiff's taxed or agreed party and party costs on High Court scale, including reasonable costs for actuarial calculations, medico-legal reports, counsel fees on scale C, and qualifying and preparation fees for expert reports; (8) Plaintiff to serve notice of taxation if costs not agreed, with defendant allowed 30 days to pay after taxation/settlement.

A plaintiff cannot claim past loss of income based on a qualification not obtained prior to the accident and where the failure to obtain it was not a result of the injuries sustained in the accident. When calculating loss of earnings in personal injury claims, appropriate contingency deductions must be applied to account for uncertainties in career progression, particularly where expert evidence is incomplete or based on overly optimistic assumptions. The court has discretion to apply different contingency rates to 'uninjured' versus 'injured' earnings scenarios, with higher deductions appropriate where projections lack adequate factual support. Expert reports must be based on complete and factually accurate information about the plaintiff's pre-accident circumstances to be given weight by the court.

The court observed that it is inappropriate for industrial psychologists to characterize a plaintiff's pre-accident occupation as 'Student - Fire Fighting' when the plaintiff had discontinued the course before the accident. The court commented that danger pay is a feature of both firefighting and emergency care officer work, and this element should be considered when determining appropriate contingency deductions. The court noted with disapproval the lack of evidence regarding Municipal Workers Pension Fund guidelines on medical boarding and pension benefits in cases of medically enforced early retirement. The court suggested that a more realistic approach to notch increases might be every three years rather than the expert's projection of every four years, though this was not determinative given the lack of factual basis for either projection.

This case demonstrates the court's approach to assessing loss of income claims in personal injury matters where the plaintiff's pre-accident career path is unclear or incomplete. It emphasizes the importance of providing complete and factually accurate information to expert witnesses, particularly industrial psychologists. The case illustrates the court's willingness to critically evaluate expert evidence and apply significant contingency deductions where projections are overly optimistic or inadequately substantiated. It also highlights the principle that claims for loss of income must be based on what the plaintiff would have achieved but for the accident, not on qualifications or career paths that were not established prior to the accident. The judgment provides guidance on appropriate contingency deductions in RAF claims where there are uncertainties about career progression.