P[...] N[...] obo K[...] N[...] N[...] v The Road Accident Fund
Case No. 2020/27135, High Court of South Africa, Gauteng Division, Pretoria
Judgment delivered 28 July 2025 by Swanepoel J
This judgment is reportable because it engages the quantification of future loss of earnings for a minor who sustained a traumatic brain injury. The court’s treatment of expert evidence, particularly its scepticism toward unsubstantiated educational projections, provides valuable guidance to both practitioners and experts.
Secondly, the case highlights the court’s willingness to intervene where actuarial scenarios are inadequately motivated, demonstrating a pragmatic approach that tempers speculation with contingency deductions.
Finally, the decision is significant for its detailed trust-protective measures crafted to safeguard the award of a vulnerable minor, thereby offering a template for orders in similar Road Accident Fund matters.
The court did not rely on or expressly cite any previous reported decisions. Its reasoning turned primarily on the expert reports placed before it and the statutory framework.
Legal Practice Act 28 of 2014, section 86(4).
Road Accident Fund Act 56 of 1996 (implicitly underpinning liability).
No specific Uniform Rules of Court were cited in the judgment.
The plaintiff, acting on behalf of her 11-year-old son K, sought damages from the Road Accident Fund after the child sustained a head injury in a 2017 motor-vehicle accident. Liability having been conceded, the court was required to determine the quantum for future loss of income.
The plaintiff’s experts predicted that, but for the accident, K would have obtained a qualification at National Qualification Framework (NQF) Level 7 and progressed to a high-earning career trajectory. Post-injury, they envisaged an NQF 6 ceiling with no promotional growth. The court found these academic projections speculative, applied higher contingencies to uninjured earnings, rejected the more optimistic actuarial scenario, and calculated damages on an averaged footing.
Swanepoel J ultimately awarded R 3 964 362.10 for loss of earnings, ordered that the capital be protected in a trust, and prescribed interest and cost consequences should the defendant delay payment.
Whether the expert evidence provided a reliable basis for predicting the minor’s uninjured academic attainment and career path.
The appropriate actuarial scenario and contingency deductions to balance uncertainty against the plaintiff’s onus of proof.
The form of protective measures required to preserve the award for the benefit of the minor child.
The court held that the educational and industrial psychologists did not justify the assumption that K would inevitably surpass his parents’ educational level. Given the statistical realities of South African education, a larger contingency was warranted on uninjured earnings. Scenario 2, which assumed rapid progression to a high remuneration band, lacked factual grounding and was reduced by averaging it with Scenario 1. Conversely, a 40 percent contingency on injured earnings was excessive because the actuary had already frozen career progression at age 23.
Applying contingencies of 25 percent (uninjured) and 20 percent (injured) yielded a net future loss of R 3 964 362.10, which the court awarded together with structured trust protection and interest provisions.
K was two years and eleven months old when he was injured on 30 July 2017 near Carolina. The vehicle, driven by his father, overturned, rendering the child briefly unconscious. Hospital records confirmed a right parietal bone fracture and a grade 1 subarachnoid haemorrhage; after conservative treatment he was discharged five days later.
Post-accident, K experiences recurrent headaches, short-term memory deficits, enuresis, mood dysregulation, and moderate neuro-cognitive impairment. Reports from an educational psychologist and a clinical psychologist note impaired complex attention and slowed mental speed, with little prospect of further recovery.
Despite generally adequate primary-school grades, K’s reliance on a tutor and his escalating academic struggles suggest that cognitive challenges will crystallise as curricular demands increase. The Road Accident Fund conceded 100 percent liability and did not participate further, leaving the court to assess quantum on the plaintiff’s evidence alone.
The first issue was whether the plaintiff had established, on a balance of probabilities, the likely trajectory of K’s uninjured academic and career achievements sufficient to ground a damages calculation.
Secondly, the court had to decide which of the competing actuarial scenarios—or what modification of them—most realistically reflected K’s prospective earnings with and without the injury.
Thirdly, the court was required to craft an order that both compensates fairly and secures the minor’s financial interests, including the appropriateness of a protective trust and the incidence of interest and costs.
Swanepoel J scrutinised the foundational premise that children generally outperform their parents educationally. Citing an article in De Rebus demonstrating that only 5.9 percent of South African learners attain degree-level qualifications, the court questioned the experts’ “glib assertion” that K would have secured an NQF 7 qualification. In the absence of concrete indicators—such as exceptional early scholastic performance—the court concluded that the projection was speculative.
Because both actuarial scenarios depended on this contested assumption, the judge refused to adopt the more optimistic Scenario 2 outright. He instead averaged Scenarios 1 and 2 to temper optimism with realism, thereby arriving at a more defensible pre-morbid earnings figure.
Regarding contingencies, the court reasoned that the significant life uncertainties attending a toddler’s future warranted a 25 percent deduction from uninjured earnings. Conversely, the 40 percent deduction proposed for injured earnings was unjustified, given the actuary’s already stagnant post-injury progression model; a 20 percent contingency struck the appropriate balance.
The court ordered the Road Accident Fund to pay R 3 964 362.10 as compensation for future loss of earnings. Interest at 10.5 percent per annum would accrue if payment were not made within 180 days.
To protect the award, the judge mandated the establishment of a trust for K’s benefit within three months, directing the plaintiff’s attorneys to invest the capital in an interest-bearing account under section 86(4) of the Legal Practice Act until the trust was created. Interim withdrawals were permitted only for reasonable medical expenses.
Cost orders were granted against the defendant for the trust’s establishment and associated administration, reinforcing the protective intent of the remedy.
A plaintiff bears the onus to prove, on a balance of probabilities, the likely uninjured career path of a minor; courts will treat speculative projections with caution and compensate through higher contingency deductions.
Expert opinions must be underpinned by factual or statistical justification; bare assertions—such as a supposed norm that children surpass their parents educationally—carry limited persuasive weight without corroborative evidence.
In Road Accident Fund claims involving minors, courts will readily employ protective trusts and section 86(4) investments to preserve capital, reflecting the overarching principle that the best interests of the child are paramount in the crafting of remedial orders.