Mjiyako obo T.S v Road Accident Fund (Reasons) (23172/18) [2025] ZAGPPHC 843 (15 August 2025)

Case Note

T[...] S[...] (represented by Adv. Ntokozo Mjiyako, Curator ad litem) v Road Accident Fund (Case No. 23172/18) [2025] ZAGPPHC ___ (Gauteng Division, Pretoria) – 15 August 2025

Reportability

This judgment is marked reportable because it furnishes a detailed exposition of how South African courts quantify general damages for a catastrophically injured minor. It synthesises an extensive body of medical-legal evidence, discusses the interaction between comparable awards and judicial discretion, and clarifies the weight to be accorded to expert consensus when the sequelae of a severe paediatric traumatic brain injury are permanent. The decision consequently provides valuable guidance for practitioners and lower courts dealing with similar claims under the Road Accident Fund Act, particularly where future care, permanent unemployability and loss of amenities of life converge.

Cases Cited

Within the judgment the court drew comparative guidance from Protea Assurance Company Limited v Lamb 1971 (1) SA 530 (A); Bonesse v Road Accident Fund 2014 (7A3) QOD 1 (Eastern Cape Division, Grahamstown); Mertz v Road Accident Fund 2023 (BA2) QOD 6 (Gauteng Division, Pretoria – Full Court); and Morake v Road Accident Fund 2018 (7A2) QOD 9 (Gauteng Division, Pretoria). Each citation was employed to benchmark contemporary monetary awards in broadly analogous circumstances.

Legislation Cited

The judgment turns principally on sections 17 and 24 of the Road Accident Fund Act 56 of 1996, together with the regulatory framework governing the issue of a section 17(4)(a) certificate for future medical and care costs.

Rules of Court Cited

No specific Uniform Rule of Court is expressly mentioned in the text; the proceedings were conducted under the ordinary trial and interlocutory time-table of the Gauteng Division without reliance on any discrete rule.

HEADNOTE

Summary

The plaintiff, a fourteen-year-old boy who sustained a devastating traumatic brain injury at the age of five when struck by a motor vehicle, claimed general damages and loss of earnings from the Road Accident Fund. Liability had long since been conceded at one-hundred percent. On 22 August 2024 the court awarded R4 000 000 in general damages, reserving reasons. After the Fund requested them, Mabuse J delivered this judgment, explaining the evidentiary foundation for that award and setting it in the matrix of recent comparable cases.

Expert evidence from neurosurgeons, neurologists, psychiatrists, occupational therapists, educational and industrial psychologists was unanimous: the minor is permanently wheelchair-bound, incontinent, cognitively compromised, illiterate, unemployable and wholly dependent on lifelong care. His injuries obliterate virtually every amenity of life.

The court reasoned that, although previous authorities serve only as guidelines, the awards in Bonesse, Mertz and Morake (adjusted to 2024 values) substantiated a figure of R4 million. The amount compensates for pain, suffering, emotional distress, severe physical and neuro-cognitive impairment, and irreversible loss of life’s pleasures.

Key Issues

The judgment addresses three interrelated questions: first, how a court should quantify non-patrimonial loss for a child whose catastrophic injuries are permanent; second, the extent to which comparable awards constrain, but do not fetter, judicial discretion; and third, the manner in which extensive expert evidence is to be weighed when determining the seriousness and permanence of a claimant’s condition.

Held

The court held that the plaintiff’s injuries are undeniably severe and permanent; that his remaining life will be one of profound dependency and deprivation; that precedent supports, and equity demands, an award of R4 000 000 for general damages; and that no lesser sum would reflect the magnitude of his suffering, functional loss and disfigurement.

THE FACTS

The minor claimant was five years old when, on 11 January 2016, he was struck by a motor vehicle while walking as a pedestrian. He was admitted to Red Cross War Memorial Children’s Hospital with a Glasgow Coma Scale of 4/15, extensive basal skull fractures, bilateral frontal and cerebellar contusions, intraventricular haemorrhage, hydrocephalus and multiple orthopaedic injuries including a pelvic fracture and liver laceration. Intensive care involved prolonged ventilation, tracheostomy, external ventricular drainage and ultimately a ventriculo-peritoneal shunt.

Post-acute rehabilitation at Groote Schuur Hospital, St Joseph Home and other facilities revealed intractable motor, cognitive and behavioural deficits. He remains wheelchair-bound, incontinent, dysarthric, with bilateral third-nerve palsies, severe ataxia and intention tremor. Formal neuro-psychological testing is impossible; experts rate his whole-person impairment at 93 percent.

Educationally, pre-accident indications were that he would likely have completed Grade 12 and possibly a diploma. Post-accident he is illiterate, attends a special-needs school but shows minimal progress, requires one-on-one assistance and will never enter the labour market. Around-the-clock supervision by family members or professional carers is indispensable.

THE ISSUES

The principal legal issue was the proper quantum of general damages for pain, suffering, disfigurement and loss of amenities of life. Because liability and special damages were resolved separately, the debate narrowed to whether the court should accept the Fund’s offer (roughly R1 million less) or the plaintiff’s contention that anything below R4 million would be unjust.

A subsidiary issue concerned the relevance and application of comparator cases in adjusting historical awards to present-day value, ensuring parity while preserving judicial discretion.

Finally, the court had to decide how to integrate a voluminous, consistent body of medico-legal opinion into a coherent evaluation of seriousness under the RAF Act, confirming that the narrative test, rather than the “whole person impairment” percentage alone, determines whether injuries are “serious”.

ANALYSIS

Mabuse J commenced by rehearsing the uncontested medical narrative, emphasising the constellation of permanent neurological, cognitive and behavioural sequelae. He accepted the unanimity of expert opinion that no meaningful improvement is possible more than eight years after the collision, rendering the boy’s deficits permanent.

Turning to quantification, the court reiterated that South African law vests a wide discretion in trial courts when awarding non-patrimonial damages. Nonetheless, fairness and consistency require reference to broadly similar cases. The court accordingly adjusted the figures in Bonesse (severe multi-system injuries with psychological overlay), Mertz (adult tetraplegia) and Morake (adult quadriplegia) to 2024 monetary value, producing a spectrum between roughly R3,5 million and R4,3 million. In light of the claimant’s age, lifelong horizon of suffering and the qualitative loss of childhood and adulthood experiences, the upper end of that range was deemed appropriate.

Finally, the court addressed the Fund’s suggestion that its lower offer sufficed. It held that any discount would trivialise the qualitative devastation wrought by the injuries. Recognising that money is an imperfect solace, the court concluded that R4 million best reflects contemporary levels of compensation for comparable catastrophic outcomes.

REMEDY

An order was therefore confirmed awarding R4 000 000 in general damages, payable together with interest if not timeously settled, and subject to the prior concession of one-hundred-percent liability. Costs of suit, including qualifying fees of all experts, were likewise awarded. Issues relating to loss of earnings and future medical expenses had previously been resolved by a separate order of 25 October 2024 and through the issue of a section 17(4)(a) certificate.

LEGAL PRINCIPLES

First, when assessing general damages South African courts must exercise a judicial discretion informed, but not dictated, by previous awards; comparable cases provide a yardstick to avoid arbitrary disparities. Second, permanence, severity and the qualitative impact on life’s amenities are decisive factors, particularly for a young claimant who will never achieve independence. Third, expert consensus on the irreversible nature of neurological and cognitive impairment carries significant weight, especially where it is corroborated across specialities. Fourth, the Road Accident Fund Act’s requirement that injuries be “serious” is satisfied where a claimant demonstrates long-term impairment of bodily function and profound disruption of education, employment and social integration. Finally, money cannot restore lost health or opportunities, but an award must strive to place the claimant in the “most advantageous position a court can” through fair monetary compensation.