THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 329/09

In the matter between

A T SAAYMAN
Appellant

and

ROAD ACCIDENT FUND
Respondent

Neutral citation:
Saayman v Road Accident Fund (329/09) [2010] ZASCA 123
(30 September 2010)

Coram:
Heher, Bosielo and Leach JJA and Majiedt and Seriti AJJA

Heard:
6 May 2010

Corrected:

Delivered:
30 September 2010

Summary:
Road Accident Fund – Third party claim – Quantum of
damages – Future loss of income – Determining the probable
rate at which the appellant's future income would have
increased but for the accident – Pre- and post-morbid
contingency deductions.

ORDER

On appeal from: South Gauteng High Court (Johannesburg), (Maluleke J sitting as
court of first instance):
1.
The appeal succeeds with costs including the costs consequent upon the
employment of two counsel.

2.
The award of R4 295 290 as damages due to the appellant in paragraph 18.2 of
the order by the court below is set aside and replaced with an amount of R13 572 649.

3.
The costs of the actuary, Mr Kramer, are to be paid by the respondent.

JUDGMENT

BOSIELO JA (Heher and Leach JJA and Majiedt and Seriti AJJA concurring)
[1] This is an appeal, with leave of the court below (Maluleke J), against an award
made in favour of the appellant in an amount of R4 295 290 in respect of future loss of
income or earning capacity suffered as a result of injuries sustained in a motor collision.

[2] This is the appellant's story which I could glean from the various witnesses who
testified in this matter. The appellant was born on 26 May 1977. After matriculating he
proceeded to obtain a degree in Bachelor of Commerce Institutional Management and
an Honours degree in Financial Management. After some brief community service
working as an accountant for his church, he was employed by Standard Bank in
September 2002 as a Market Risk Analyst.

[3] According to all the evidence the appellant impressed as an exceptionally
talented person. He was a cut above the rest. He exuded confidence, was assertive and
innovative. He was a likeable person who made his presence felt by everybody. He
enjoyed his work and was willing to take initiative to learn new things. His intellect and
intelligence were above average. Primarily because of his talent and performance, in
less than three months the appellant was promoted to the position of Market Risk
Manager at Standard Bank earning a salary of R339 166 per annum. The appellant
continued to excel to an extent that he was earmarked for a special Career
Development Programme to develop and groom him.

[4] All the seniors who worked with the appellant at Standard Bank are unanimous
that, because of his exceptional attributes and abilities, the appellant appeared destined
for a post in the top echelon in the banking industry. Almost all the witnesses who
worked with the appellant at the bank were agreed that with time the appellant would
rise to the position of Head of Market Risk. It is only Mr Oktay a senior Market Risk
Manager who had minor misgivings, based largely on the appellant's personality.
Importantly all the witnesses agreed that at least by 1 January 2014, the appellant
would have assumed the position of Head of Market Risk. This was the dominant view
until the accident on 13 June 2005 which had far-reaching and tragic consequences for
the appellant.

[5] Following upon the accident, the appellant was admitted at Linksfield Clinic. He
had suffered some serious head injuries and resultant brain injuries. As a result he was
placed in an intensive care unit. The expert witnesses (Dr Edeling a Neurosurgeon and
Ms Adan a Counselling Psychologist) are agreed that the appellant suffered a diffuse
axonal brain injury. After he was discharged from hospital, the appellant returned to his
original job at Standard Bank. It is not in dispute that although he experienced some
serious problems in adjusting, the appellant coped with his work. With the help and
support of his colleagues and some empathy from his seniors the appellant successfully
went through a rehabilitative period at work, up to the level where he was able to
perform optimally in the same position which he held before the accident.

[6] What is sad but crystal clear is that because of the accident the appellant is not
the same person. He is no longer as ebullient and effusive as before. Before the
accident, Mr Blenkinsop, Head of Risk and Compliance Rand Merchant Bank (RMB)
had shown keen interest in employing the appellant as their new Risk Manager.
Pursuant hereto, the appellant was invited for an interview where he made a good
impression. Mr Blenkinsop is of the view that the appellant is now less confident,
withdrawn and reticent. Due to the appellant's present condition, he is no longer certain
that RMB would still be interested in the appellant. The appellant is suffering from mood
outbursts. His memory and concentration have been adversely affected. Unlike before
the accident, he now requires supervision in his work. This is corroborated by Ms Adan
who testified that the appellant has complex problems. He is experiencing cognitive
overload and finds multi-tasking very difficult. He is also unable to receive and
assimilate new knowledge. All these are the results of the brain damage which the
appellant suffered in the collision.

[7] Although the appellant is now working for Liberty Life where he is doing the same
work which he did at Standard Bank, all the experts are agreed that the accident has
affected him so seriously that he will never be able to progress beyond his current
position. What is worse is that because of the difficulty of coping with a heavy workload
and the stress which comes with it, the appellant is likely to be overtaken by his peers.
All the witnesses are agreed that the appellant has reached his ceiling. What
compounds the appellant’s problems further is that as Dr Marais, Head of Market Risk
stated, the banking environment where the appellant works is highly pressurised,
competitive and ruthless. Everybody has to compete for his or her position. It is a world
where sympathy has no place. Sadly this does not augur well for the appellant.

[8] In consequence of his injuries the appellant instituted a claim against the
respondent for his damages. Suffice to state that all other claims, save for the one for
future loss of income or earning capacity, have been settled by agreement. The
appellant claimed an amount of R54 310 264 for his future loss of income or earning
capacity. The learned judge in the court below awarded the appellant R4 295 290. The
appellant contends that this amount is far too low and points to a number of

irregularities and misdirections which, he contends led to the incorrect award. I will deal
with the alleged irregularities hereunder.

[9] Firstly, the learned judge is accused of having given incorrect instructions to the
actuaries concerning the basis on which the parties had agreed for the calculation of the
damages due. It is common cause that the actuaries called by both parties had agreed
that the appellant would probably have been appointed Head of Market Risk on 1
January 2014 at an annual income of R2,25m calculated at the 2007 rate. However, in
his instructions to the actuaries the learned judge erroneously instructed them that the
R2,25m should be calculated at the 2009 rate. It became common cause during
argument before us that the learned judge did in fact err in his instructions to the
actuaries.

[10] In calculating the total amount due to the appellant from 1 January 2014 until his
retirement age at 60 in 2037, as agreed, the learned judge found that it could not be
said with certainty that the appellant would have been appointed Head of Market Risk.
The learned judge found that there were the usual hazards of life which could have
adversely affected the appellant's chances of promotion and awarded a contingency of
50 percent. Although the learned judge was entitled to consider and make room for the
usual hazards of life, this finding is not supported by the evidence. The cumulative
evidence of the witnesses is that, but for the accident, the appellant would have been
promoted to Head of Market Risk. In recognition of this, the appellant had already been
earmarked for a special Career Development Programme. I agree with counsel for the
respondent that, notwithstanding the general hazards and uncertainties of life, there
was a 75 percent prospect that the appellant would have been promoted to that
position, thus justifying a contingency deduction of 25 percent. To my mind this is in
accordance with the evidence. It follows that the learned judge erred.

[11] Concerning the appellant’s life and career after the accident, it is clear that the
appellant was no longer the same. The effect of the evidence of inter alios, Dr Edeling,
Dr Marais and Mr Schoombie, the industrial psychologist is to the effect that because of
his injuries and their sequelae, the appellant is likely to find himself in a situation where

his peers have overtaken him and he will not progress beyond his present position.
Evidently this means that, contrary to the finding of the learned judge, the appellant's
employment prospects after the accident are rather more precarious and less secured
than before the accident. On the conspectus of the evidence, there can be no doubt that
the appellant is more likely to lose his employment after the accident than before it. The
learned judge erred in finding that the prospects of the appellant losing his employment
post accident are less, thus awarding a 10 percent contingency. To my mind a higher
contingency allowance post accident is warranted. In the circumstances, I would award
a post-accident contingency at 30 percent as against the 10 percent awarded by the
trial judge. Maluleke J had fixed the pre-collision contingency at 20percent. The
appellant also contended for a 20 percent pre-collision contingency. Having considered
the evidence, I can find no fault with Maluleke J’s finding.

[12] There was a huge debate surrounding the contentious aspects of the applicable
interest and inflation rate. The appellant argued for inflation at 12,5 percent. Primarily
this was based on an alleged admission made by the respondent's counsel during his
address. The respondent sought to have the admission withdrawn on the basis that it
was made in error. The appellant opposed this on the basis that the respondent was not
permitted to withdraw the admission unilaterally and without a proper and formal
application. The learned judge granted the application. I agree with the respondent's
counsel that this was not intended to be a formal admission. To my mind, this was not
an unequivocal admission but a mere concession made by counsel in the course of his
address. Such a concession may be withdrawn at any time, particularly where such a
withdrawal will not cause the other party any prejudice. In this case the concession was
withdrawn during the trial whilst the appellant had ample time to call whatever witnesses
he wished to call to prove this point. As a result the appellant cannot claim to have been
prejudiced in the conduct of his trial. Having due regard to the context under which this
concession was made, I am of the view that there was no need for a formal withdrawal.
See Kevin and Lasia Property Investment CC & another v Roos NO & others 2004 (4)
SA 103 (SCA) para 12.

[13] Viewed against the totality of the evidence, I agree with the learned judge that
the 12,5 percent sought by the appellant is unrealistic and unsustainable as it would
have brought about an unrealistic increase in the salary for the post. The learned judge
determined the interest at 2,5 percent. I can find no fault with this determination more so
that it was based on common actuarial practice in similar cases.

[14] In conclusion I am satisfied that the learned judge erred in his calculation of the
damages due to the appellant for his future loss of income. The learned judge
committed a number of irregularities and misdirections which led to an award which
reflects a striking disparity to the amount which I would have awarded. This entitles this
court to interfere with the award by the court below. See Road Accident Fund v Guedes
2006 (5) SA 583 (SCA) para 8.

[15] It should be clear that there is a need for a proper and accurate recalculation of
the damages to be awarded to the appellant. The parties agreed that, once we have
decided on the proper basis for the recalculation of the appellant’s damages, the matter
be referred to an independent actuary for a correct recalculation.

[16] Based on the above analysis, the amount due to the appellant for his loss of
future income or future loss of earning capacity should be calculated with effect from 1
January 2014 until his retirement age of 60 in 2037 at R2,25m at the 2007 rate with a 30
percent contingency. Interest shall be calculated at 2,5 percent and inflation at 6 percent
per annum.

[17] Acting on the mutual agreement of the parties, Mr Ivan Kramer, an actuary, was
appointed to assist the court in recalculating the quantum of the appellant’s loss of
earning capacity. Mr Kramer has duly executed his mandate with admirable promptness
and furnished the court with his report.  Having done his actuarial analysis, Mr Kramer
summarised the appellant’s loss of income, ie the difference between the value of
income ‘but for the accident’ and ‘having regard to the accident’ as follows:

But for the accident
having regard to the
Accident
net loss

Gross accrued value of income
2,267,910
2,267,910
Less contingency
340,187
1,020,560   _________
Net accrued value of income
1,927,723
1,247,350        680,373

Gross prospective value of income                  32,529,470
17,177,393
Less contingency
10,189,628
7,729,827 __________
Net prospective value of income
22,339,842
9,447,566   12,892,276

______________
_____________ __________
Total value of income
24,267,565
10,694,916   13,572,649

(values in rands).

[18] In the result the following order is made:
1.
The appeal succeeds with costs including the costs consequent upon the
employment of two counsel.
2.
The award of R4 295 290 as damages due to the appellant in paragraph 18.2 of
the order by the court below is set aside and replaced with an amount of R13 572 649.

3.
The costs of the actuary, Mr Kramer, are to be paid by the respondent.

________________
L O Bosielo
Judge of Appeal

HEHER JA (Leach JA and Majiedt AJA concurring)
[19] I agree with the judgment prepared by my brother Bosielo. Although we do not
differ in the result, I deem it desirable to provide additional reasons for coming to my
conclusions.

[20] This is an appeal with leave of the court below (Maluleke J) against the
quantum of an award made in favour of the appellant in an amount of R4 295 290 as
loss of earning capacity suffered as a result of injuries sustained in a motor collision
on 13 June 2005.1

[21] On that day the appellant had been employed by the Standard Bank as a
market risk analyst for almost three years. A head injury with brain damage ensured
that further progress in his profession would be permanently stayed. He commenced
action against the respondent (the Fund) claiming compensation for his loss. The
Fund conceded the negligence of the insured driver and most elements of the claim
for damages. The trial proceeded only on disputes around the appellant’s future loss
of earnings. Most of the evidence for the appellant2 was not the subject of serious
factual dispute. That the appellant was, before the accident, a young man
exceptionally talented in the field of risk management who had secured the
confidence of his seniors and that he possessed great potential for advancement in
banking generally, was very clear. The award, however, fell far short of his
expectations. He was advised that the trial judge had misdirected himself. Hence this
appeal.

[22] Before identifying the precise issues which were argued before us, it will
assist if I refer to those findings of the judge a quo which are not in dispute. These
include the following:

The pre-accident position.
[23] 1.
The plaintiff would have continued in employment as a market risk
manager until 31 December 2013.
2.
The salary applicable to that post was R767 200 per annum at the date of the
trial in 2007.
3.
The salary would have grown with normal inflationary increases while the
appellant occupied the post.

1 All other heads of damages had been agreed before the trial concluded.
2 He himself did not testify.

4.
From 1 January 2014 the appellant would have been promoted to the post of
Head of Market Risk in the banking and financial services sector with a salary
package made up of salary and bonus (in approximately equal proportions)
amounting to R2.25 million in 2007 monetary terms.
5.
He would have held that post until retirement at the age of 60 years on 16
May 2037 subject to the hazards of life and such special risks as derived from the
nature of his employment.

The post-accident position.
[24] 1.
The appellant, who had continued to occupy the post of market risk
manager, albeit with a change of employer, between the accident and the date of
judgment, would remain in that post or its equivalent for the remainder of his working
life.
2.
The salary that he would earn would be his 2007 remuneration of R767 200
per annum escalated annually in accordance with normal inflationary increases.
3.
The appellant would retire at age 60, subject to the hazards of life and the
adverse effects of the collision on his work performance in the interim.

[25] In summary, the appeal was directed at the following findings made by
Maluleke J:
1.
The learned judge considered that, although the probabilities favoured the
appointment of the appellant to the post of Head of Market Risk in January 2014,
that outcome fell well short of certainty. The imponderables were, in his view such as
to justify a contingency reduction of 50 per cent, which he duly applied.
2.
The salary of the post of Head of Market Risk carried with it the probability of
increases. The learned judge found that such increases were on average likely to be
above the inflation rate prevailing from time to time. Assuming an average inflation
rate of six per cent annually over the whole period he held that the average real
increase in salary would be an additional 2.5% per annum. (For reasons which will
be explained the appellant contended for annual increases of 12.5%, including
inflation.)
3.
The pre-accident contingency attaching to employment as a Head of Market

Risk until 2037 was fixed by Maluleke J at 20%. He held, by contrast, that ‘his
present employment is secured and is therefore a matter for less speculation’ and
imposed a contingency of 10% against his ability to retain his employment to the age
of retirement post-accident. In the appeal the appellant contended that the degree of
risk of losing his job after the accident was the greater. He submitted that
contingencies of 30% (post-accident) and 20% (pre-accident) should have been
applied.
4.
Although the parties were agreed at the trial that the salary of Head of Market
Risk should be calculated on the basis of its 2007 value of R2.25 million, the trial
judge per incuriam instructed the actuaries to use that salary as at 2009, leading to a
final calculation that was disadvantageous to the appellant. This misdirection was not
contested by the respondent and the order which this Court makes will rectify the
error.

The contingency for appointment as Head of Market Risk
[26] The appellant attacked the judge’s finding on two grounds. First, he alleged
that the future promotion was admitted as a fact and was therefore not subject to the
imposition of any contingency. Second, he contended that the evidence bore out the
certainty of the appointment.

[27] As the appellant’s argument both in relation to the first alleged misdirection
and that relating to the future increases in salary for the post of Head of Market Risk
depend to a substantial extent on informal admissions3 said to have been made by
the Fund’s counsel during the trial, it is convenient at this stage to make certain
observations which affect those submissions.

[28] In the context of civil proceedings an admission is a statement against interest
which has the effect of binding the party on whose behalf it is made. If that effect is
absent the statement cannot amount to an admission and the well-established rules
relating to the withdrawal of admissions cannot apply to it. In fact a withdrawal is,

3 Informal, inasmuch as they were not recorded by the court as admissions: s 5 of the Civil
Proceedings (Evidence) Act 25 of 1965.

strictly, unnecessary and prejudice to the other party is not an issue. An admission,
in its formal sense, also requires at least an intention, explicit or inferred, and
unequivocal, to remove a fact that depends on proof from the field of contention.

[29] Concessions are made by counsel in the course of a trial for a variety of
reasons without a contemplation that he is thereby committing his client and without
any intention to limit the issues. The statement in question may, for example, be
used as an assumption on which to found an argument or be made in a bona fide
spirit of fairness intending to convey to the court counsel’s candid view of the way
the court should proceed. In the absence of formality the context must necessarily be
decisive of whether an admission has been made.4 As will be seen, I am of the view
that it provides the answer in this case too. Although there was some suggestion that
the alleged admissions had been made between counsel before being
communicated to the court, there was no evidence in that regard and the issue can
be limited to statements contained in the heads of argument and repeated in oral
argument to the court a quo.

[30] To return to the first so-called misdirection, I can find no evidence of any
express statement by counsel for the defendant which raised the probability of the
2014 appointment to the level of certainty. As to an inference to that effect, the
contextual indications are to the contrary. The amendment which introduced 2014 as
the date for that promotion was moved after the evidence (save for that of the
actuaries) had been concluded. It came about because the plaintiff’s counsel plainly
realized that the strength of their case lay in the probability of such promotion and
not in the possibility of advancement to the higher post of Head of Risk Management

4 In Standard Bank of S.A. Ltd v Minister of Bantu Education 1966 (1) 229(N) Caney J said (at 242H-
243G): ‘Whatever may be the position concerning counsel’s authority to bind his client by admissions
formally made and recorded in a civil case, it seems undesirable that counsel’s opening of a case
should be accorded decisive effect in regard of proof of facts necessary to a party’s case or defence.
Opening remarks are, in common with counsel’s closing argument, usually not recorded. If such
matters are to be used in coming to a conclusion in a judgment, they must be set out therein and
used, in the ordinary course of events, with considerable circumspection. No use was made of this
factor by the court a quo and it is quite uncertain what its conclusion in that regard would have been.’ I
respectfully adopt the entirety of this reasoning. See also Kevin and Lasia Property Investment CC v
Roos NO 2004 (4) SA 103 at para 12.

where their evidence had been indifferent. They therefore chose a date later than the
evidence merited in order to strengthen their hand in argument. Counsel for both
parties knew that cross-examination against the likelihood of promotion to Head of
Market Risk had been directed to particular areas of alleged weakness―educational
shortcomings, character defects, unproven managerial abilities, the unpredictability
of the quality and number of competitors for promotion and the inherent
disadvantages to the appellant in the predicated emphasis on gender and racial
diversity. Counsel were aware that such uncertainties as arose from these areas had
not been eliminated. In addition they were debating a scenario that was still some six
years distant. There was in these circumstances no reason for the Fund or its
counsel to abandon reliance on any degree of doubt which they had succeeded in
raising. Nor did the plaintiff’s counsel have any good reason to believe that they
intended to do so.

[31] In this context it is impossible to read into the argument before the court a quo
any admission that the appellant would, as a fact, have been appointed. That being
so, the question which arises is whether the evidence justified a reduction of 50% in
the probability of promotion.5

[32] Against the contra-indications that I have mentioned, none of which was
entirely without weight, the following factors in favour of promotion must be taken
into account-
(i)
the predictable shortage of suitably skilled persons available for such a
position;
(ii)
the confidence shown by the appellant’s superiors in his ability to advance in
the company;
(iii)
the appellant’s proven competence and self-assurance;
(iv)
the availability of similar posts beyond his then employment both within and
outside South Africa;

5 In my approach to all the contingencies considered in this judgment I have, of course, borne in mind
that the trial judge was exercising a discretion with which this Court will not interfere unless it was not
properly exercised: see eg Van der Plaats v SA Mutual Fire and General Ins Co Ltd 1980 (3) SA 105
(A) at 114F-G; De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA) at para 47.

(v)
the realistic possibility that he would have been able to compete for the post
earlier than 2014.

[33] The learned judge commenced his assessment of this aspect with the
comment ‘It is undisputed that but for the collision plaintiff had “a better than 50/50
chance” to be promoted. . .‘ but, despite that foundation, there is no indication that
the learned judge attached any or adequate weight to these factors.

[34] In my judgment if the court a quo had properly assessed the probabilities for
and against promotion on the stipulated date it must have concluded that the
prospect was, although not risk-free, substantially better than even. A 25%
contingency would most accurately reflect the balance of the evidence. This in short
means that I am of the view that there was a 25% chance that the appellant would
not have been so promoted (and would, in consequence, have continued to earn the
salary of a manager of market risk) but a 75% chance that he would have been
promoted and, from 1 January 2014, earned the salary appropriate to the post of
Head of Market Risk.

The correct rate of increase for the post of Head of Market Risk
[35] The appellant contended for an annual increase of 12.5% per annum. He
relied upon an admission to that effect by defendant’s counsel at the trial. There is
no doubt that the Fund’s counsel submitted in his heads of argument that the rate of
escalation to be applied ‘exceeds that of inflation and should be assumed to be
12.5% per annum’ and ‘after being promoted he would have received increases at
an average rate of 12.5% per annum’.

[36] Counsel for the defendant later disavowed this concession. His explanation
was that the prevailing rate of inflation in the preceding year had been some 10 per
cent; in fixing on 12.5% he had intended only to submit that the post would have
carried a real increase of 2.5% per annum. However there are passages in the
record which belie this explanation. Once again the context is of assistance. Counsel
was not addressing a fact so much as a prophecy: the annual rate of increase over

twenty-three years (from 2014). That involved, at best, an informed prediction
combining many variables bearing on the economy and market conditions. But there
was no such information available. The ‘best evidence’ related to rates of increase
over the ten years preceding the trial. But there was no justification for projecting
those (very substantial) rates on the period from 2014. When counsel made the
concession the evidence had been led and its deficiencies must have been apparent
to both sides. As the actuaries noted and the learned judge accepted, an annual
increment of 12.5% every year for 23 years would have resulted in a massive and
unrealistic ballooning in the salary for the post, a lack of reality which is magnified
when one remembers that the post in question is only one of a much larger structure
within the company and nationally from which it cannot be isolated. In the
circumstances, counsel’s concession amounted to no more than his opinion, neither
intended as the admission of his client nor designed to release the court from its duty
to make a finding on the question.

[37] Making his finding on this matter the trial judge preferred the evidence of
actuarial practice in such cases, in effect the determination of the likely average rate
of inflation and the imposition on that rate of a real increase of about 2.5%, even
though this represented no more than doing one’s best with limited materials. I
cannot find fault with this approach and it provides an answer which may or may not
be conservative but appeals as fair and balanced.

The pre-accident prospect of the appellant retaining the post of Head of Market
Risk until retirement.
[38] The trial judge allowed a special contingency of 20%. The evidence shows
that risk management is a demanding exercise that bears its own hazards for long-
term security of tenure, particularly in difficult economic times or in the face of
decisions which are thought by management to be prejudicial to the interest of the
company. It is not reasonable to find that the trial judge was wrong in the
assessment he made on this aspect. This contingency applies to the appellant’s
assumed occupation of the post of Head of Market Risk from 1 January 2014 until
retirement. It does not apply to the period 1 January 2007 until 31 December 2013 ie

while the appellant would have been employed as manager of market risk.

The post-accident prospect of the appellant retaining the post of manager of
market risk until retirement.
[39] The evidence established marked physical and psychological deterioration in
the appellant as early as the date of the trial. The opinions of his supervisors were
that he would be unable to rise to the increasing demands of the post. Nor would he
long be able to compete with younger persons, even those who did not overtake him
on the promotional ladder. As his career stagnated, decrease in motivation would
also tell against his desirability for continued employment. In the circumstances the
appellant was likely to become a prime candidate for redundancy in later life
particular in an adverse economic climate. In this instance the learned judge’s view
that his position was more secure after the accident does not reflect the evidence.
The contingency of 10% at which he arrived is materially less than what I regard as
appropriate. I would fix this special contingency at 30%. This means that the
contingency will apply to the period 1 January 2007 until 26 May 2037 ie while the
appellant occupies the position of manager of market risk. The difference in
approach between the pre- and post-accident contingencies arises from the different
causes that justify the application of those contingencies.

[40] One further aspect of clarification is required. In the pre-accident scenario I
have referred to the common cause fact that the appellant’s salary would have
grown with normal inflationary increases while he occupied the post of manager of
market risk (until 31 December 2013). No consideration seems to have been given
by the parties or the court a quo to the likelihood of real increases during that time.
This however was the essence of the question raised in relation to the post of Head
of Market Risk (from 1 January 2014 until the appellant’s retirement) and in respect
of which I have made a finding of an average real increase of 2.5% per annum. As
earlier emphasised, the more senior post exists as part of a structure (which includes
the lesser). Both common sense and logic demand that equivalent real increases be
applied to the post of manager of market risk prior to 2014.

[41] For these reasons I agree with the order proposed by my brother Bosielo.

__________________

J A Heher

Judge of Appeal

APPEARANCES:

For appellant:
B Ancer SC (with him D Goodenough)

Instructed by:
Ramsay Webber Attorneys, Johannesburg

Webbers, Bloemfontein

For respondent:
T A L L Potgieter

Instructed by:
Dyason Attorneys, Pretoria

McIntyre & Van Der Post, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 September 2010

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Saayman v Road Accident Fund (329/09) [2010] ZASCA 123 (30 September 2010)

The Supreme Court of Appeal today upheld an appeal against a judgment of the South
Gauteng High Court in a matter where the court awarded damages to the appellant for loss of
earning capacity in the amount of R4 295 290.  The appellant had originally claimed damages
in the amount of R45 038 137.  The evidence is that the appellant who was employed as
Market Risk Manager by Liberty Life would, but for the motor collision which occurred on 13
June 2005, have risen in his career in the banking environment to the position of Head of
Market Risk where he would have been employed from 1 January 2014 until his retirement
age in 2037 at an annual salary of R2,25m at an average real increase of 2,5 percent against
inflation at 6 percent per annum.

Having considered the calculations made by an actuary appointed by the SCA on the mutual
agreement by both parties, the SCA set aside the award of R4 295 290 and replaced it with
an award of R13 572 649.