Bam obo Viviers v Road Accident Fund (70393/12) [2015] ZAGPPHC 1054 (12 November 2015)

Bam obo Viviers v Road Accident Fund (70393/12) [2015] ZAGPPHC 1054 (12 November 2015)

The court found that the plaintiff's evidence regarding pre-accident earnings was insufficiently corroborated, with witnesses only able to testify to earnings for a limited period and lacking validated earning capacity prior to 2008. The court determined that the plaintiff should not unduly benefit from insufficient evidentiary contribution and applied contingency deductions of 15% for past loss and 30% for future loss of earnings. The actuarial calculation with these deductions resulted in a provisional payment of R3,380,326, subject to the outcome of Nel v RAF regarding the application of merit apportionment and the statutory cap. The court ordered payment of this amount, with provision...

Citation
[2015] ZAGPPHC 1054
Parties
Plaintiff: Advocate J Bam N.O. (obo Gerrit Johannes Viviers); Defendant: The Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 November 2015
Case Number
70393/12
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim for loss of income and earning capacity is provisionally upheld, subject to the outcome in Nel v RAF. Costs awarded to plaintiff.
Judges
Molefe
Legal Topics
Road Accident Fund Act, Loss of Earning Capacity, Contingency Deductions, Quantification of Damages
Delict Civil Procedure Road Accident Fund Act Loss of Earning Capacity Contingency Deductions Quantification of Damages

Case Brief

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Parties

Advocate J Bam N.O. (obo Gerrit Johannes Viviers)

Plaintiff

The Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 What was the plaintiff's actual pre-accident earnings for purposes of calculating loss of income and earning capacity?
  2. 2 What contingency deductions should be applied to the plaintiff's loss of earnings claim?
  3. 3 Should the merit apportionment be applied before or after the statutory cap in terms of the Road Accident Fund Act?

Ratio Decidendi

The court found that the plaintiff's evidence regarding pre-accident earnings was insufficiently corroborated, with witnesses only able to testify to earnings for a limited period and lacking validated earning capacity prior to 2008. The court determined that the plaintiff should not unduly benefit from insufficient evidentiary contribution and applied contingency deductions of 15% for past loss and 30% for future loss of earnings. The actuarial calculation with these deductions resulted in a provisional payment of R3,380,326, subject to the outcome of Nel v RAF regarding the application of merit apportionment and the statutory cap. The court ordered payment of this amount, with provision...

Court Disposition

Plaintiff's claim for loss of income and earning capacity is provisionally upheld, subject to the outcome in Nel v RAF. Costs awarded to plaintiff.

Orders

  • The defendant shall pay to the plaintiff's attorney R3,380,326 on or before 28 November 2015 in provisional settlement of the action, being the plaintiff's loss of income when the merit apportionment of 80% is deducted after the CAP has been applied.
  • The payment is provisional, depending on the judgment in Nel v RAF (case no. 76781/10). If the court in that action finds that the merits apportionment should be applied before the CAP is applied, the defendant shall be liable for payment of an additional amount of R845,081. If the court finds that the merit...