SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No: 2019/21471
IN THE MATTER BETWEEN:
M[…] F[…] L[…] obo PLAINTIFF
A[…] B[…] L[…] AND ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
SIWENDU J
Introduction
DELETE WHICHEVER IS NOT APPLICABLE
) REPORTABLE: NO
) OF INTEREST TO OTHER JUDGES: NO
) REVISED
11.03.2024
DATE SIGNATURE
[1] This action was instituted by FML against the Road Accident Fund (RAF) in
his capacity as the father of the minor child. ABL was born on 10 April 2013 . On 12
July 2015, when she was 2 years old , the vehicle in which she was a passenger was
involved in an accident with a taxi driven by an unidentified taxi driver. ABL was an
unrestrained passenger .
[2] The serious injury assessment report prepared by Dr G.M Fredericks based
on an examination conducted on 1 July 2019 reveals that ABL was taken to C hris
Hani Baragwanath Academic Hospital. It is reported that she:
i.lost consciousness for approximately five minutes after being propelled from the back seat of the vehicle.
ii.sustained a left -sided forehead abrasion and had been experiencing
persistent disabling left- sided headaches following blunt head trauma.
iii.She has become dependent on oral analgesics on an ongoing basis to
alleviate her persistent disabling headaches following the accident question,
iv.In view of the disabling nature of the headaches, a minimum Class 4 allocation was reasonable which equates to a 5% WPI rating.
[3] Hospital records dated 3 August 2015, state that ABL returned to hospital for
a review . She sustained:
i.a "distal femur greenstick f racture approximately three weeks ago”
ii. it was discovered that she "had a fracture around the knee" for which a back -
slab was applied.
iii.A control x -ray performed as part of this assessment confirms the absence of
radiological abnormalities according to available radiologist's report.
iv.An assessment translated to 3 % WPI rating.
[4] Dr G.M Fredericks concluded that ABL sustained a Whole Person Impairment
(WPI) of 8% and “it is reasonable that the claimant's injuries should be allowed to
qualify “as Serious Injuries under 5.1 of the Narrativ e Test .”
[5] It is noteworthy that a Folstein Extended Mental State Exam (EMSE) could
not be performed as part of this assessment based on ABL’s age and educational
background at the time of the accident . Dr Fredericks stated that “in view of the
documented head injury which was sustained at the time of the accident and due to
the disabling nature of the child's headaches following the accident ” he would defer
the assessment of ABL’s educational status and capacity to an Educational
Psychologist .
[6] It is undisputed that ABL suffered a Mild head injury . Prof A Ke lly, a specialist
neurosurgeon who examined ABL when she was 6 years (approximately four years
after the accident) confirmed t hat she was fully conscious on arrival at hospital, and
a GCS of 15/15 was reported. No CT brain was done. It was reported she lost ABL
lost consciousness for 5minutes. She was discharged approximately two days post
admission. She was reviewed multiple times in the out -patient clinic at Chris Hani
Baragwanath hospital but was never readmitted.
[7] Dr Kelly also noted that ABL had not experienced memory impairment -
“patient has not experienced memory problems ”, nor e pilepsy - “patient has not
experienced seizures ” when he examined her. However , she experienced visual
difficulties and persistent post -concussion headaches which were treated through
over the counter medication. He observed that “the presence of a superficial injury
on the head is evidence of direct impact on the head. It is however not a factor used in the diagnosis of a traumatic brain injury .” No neuropsychological complications
were found. She has 2- 3% chance of developing late onset post traumatic epilepsy .
He stated that chance of the development of epilepsy have not increased. [8] At the hearing, the RAF conceded the m erits. The RAF rejected the claim for
general damages , and it is to be referred to the HPCSA .
[9] The case rests solely on expert evidence produced by Mr FML. T he applicant
sought the court’s leave to present the evidence and that of his experts witnesses by
way of affidavit in terms of Rule 38(2)
1 read with section 13 of Act 44 of 1988 for the
1 “The witnesses at the trial of any action shall be orally examined, but a court may at any time, for
sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit
or that the affidavit of any witness be read at the hearing, on such terms and conditions as to it may
seem meet: Provided that where it appears to the court that any other party reasonably requires the
admission of evidence on affidavit. Ms Mhlanga, the State Attorney representing the
RAF, acceded to the request but sought the attendance of the Educational
Psychologist (Ms N du Plessis ), and the Industrial Psychologist , (Mr Lewis Rosen)
for cross -examination. The qualification of these experts is not disputed .
Issue for Determination
[10] The dispute stems from the sequelae of the injuries sustained by ABL. RAF
challenges the postulation made by Ms du Plessis on which Mr Rosen’s report is
based. Mr FML contends the contrary , that s he will attain an NQF6 q ualification. The
RAF on the other hand c ontends it is highly probable that ABL will attain NQF7.
[11] The premise for RAF’s challenge is that ABL suffered a mild traumatic head
injury (MBI) with a GCS of 15/15. Her past and current school reports demonstrate
that ABL is “coping and passing” all her grades at primary school. There is no
dispute that she will matric ulate and will be employable.
[12] The dispute about the prospective loss of earnings thus turns on a narrow
question of whether, ABL will attain an NQF6 or NQF7 qualification. A conclusion
either way determines the cal culation of A BL’s loss of e arnings capacity . Initially, a
prayer for an amount of R4 770 055,00 was made but the plaintiff sought leave to
amend paragraph 1 of the Prayers with the figure R5 512 159.00.
Evidence
[13] Ms du Plessis conducted her first assessment 31 October 2019 and a follow
up assessment on 26 August 2024 when ABL was 11 years and 04 months . She
agreed that ABL will matriculate . The point of departure is that she says ABL will
obtain a lesser NQF6 qualification at a Technical Vocational and Educational
Training (TVET) college. She would have matriculated and o btained an NQF7 level
qualification had the accident not occurred.
attendance of a witness for cross -examination, and such witness can be produced, the evidence of
such witness shall not be given on affidavit.”
[14] The RAF was dissatisfied with the premise Ms du Plessis ’s conclusion and
challenged this during cross examination. The RAF pointed to the orthopaedic
surgeon’s report , which indicates that ABL’s symptoms will improve and will have no
effect on her employability.
[15] In answer, Ms du Plessis conceded the findings in the orthopaedic report.
However, she testified that physical injury caus e discomfort, pain and irritability
which affects the learning drive. Since not much has been done to treat ABL, sitting
for long periods can aggravate the pain.
[16] Another basis for challenging Ms du Plessis ’ conclusion was ABL’s school
performance in Grades 1, 2, 4, 5 and 6 (term I and 2). ABL changed schools to New
Model Private College in 2024, where she is currently in Grade Six . The RAF
contended the reports reflect a performance which is either on par or above class average. As a G rade 6 leaner , the conclusion to be drawn is that “she is not
struggling.”
[17] The response to this is that ABL’s working memory is essential for learning,
problem solving and mathematical skills. The headaches post -concussion reduces
the ability to stay focus ed and slows down the learning process. The headaches are
accompanied by nose bleeds . In addition, contrary to Dr Kelly’s opinion ABLA , in
2023, she experienced her first epileptic seizures 2 -3 times per month. They l ead to
frequent school absenteeism . Dr Mazabow is of the view that the seizures are
neurological and post -traumatic in nature. The condition will need management and
better control. Ms du Plessis found, ABL exhibited ADHD like features secondary to
the mild traumatic brain injury .
[18] According to Ms du Plessis, as ABL moves out of the foundational phase, to
the intermediate and senior school phases, there will be an increase in her academic workload. Her long- term Memory was found to be below average. indicating There
will be most likely be a decline in her cognitive / executive functioning. ABL exhibited
reading and writing difficulties . While she may get learning concessions , get
psychotherapy to deal with anxiety and depression, the current s results indicate she
would have been obtained an NQF7 pre- accident but not th e post-accident. A
degree will be more demanding . She was confident of her diagnosis given the
“conglomeration of these factors.” She normally, and she expects a decline to occur .
[19] Pressed on when the decline will likely manifest, Ms du Plessis referred the
Court to the report by Dr Mazabow a Clinical Neuropsychologist, which indicates that
the salient symptoms will reveal in time because of the “sleeper effect .” Given a brain
injury at an early age, ABL is more vulnerable to develop future mood and anxiety
disturbances. She emphasised that her evidence is not that she will not pass matric .
[20] Ms du Plessis’s evidence must be considered in the light of Dr Kelly’s report
and evidence, as well as Ms Beverley Van Zyl , a Clinical Neuropsychologist .
Although Dr Kelly agreed that ABL would not be able to compete effectively in the
open labour market due to the (a) Headaches (b) Visual problems and (c) Left leg
pain, the young age at which the head injury occurred makes it difficult to give a
prognosis since later neuro- cognitive and social implications are impossible to
predict.
[21] Ms Beverley Van Zyl stated that given the young age at which the accident
occurred, it is simply too early to exclude neuronal damage. The neuropsychological
profile demonstrated performances within expected range, i.e. average to high average albeit with some mild variability and is inconsistent with the presence of a head injury of any significance. She “strongly recommended that ABL has a baseline
educational assessment to serve as a benchmark and that she has regular
assessment updates to assist in the way forward. ” She estimated her pre- morbid
intellectual potential to be in the average to high average range. She noted that ,
further deficits may become evident as the brain matures given the young age at which injuries were sustained. It is so that s he deferred this to the Educational
Psychologist . [emphasis added]
[22] Recently, a report dated 26 March 2024 was compiled by a different Clinical
Neuropsychologist, Dr M Mazabow . Collateral information obtained from ABL’s
father is that she experiences frequent Epistaxis ( nosebleeds ), and this has been the
case since she was 3 years old. Early in 2023, she b egan experiencing seizures ,
often occur ring at the same time as the headaches, 2 or 3 times a month. Some
months would be without the episodes. Her concentration fluctuated significantly .
[23] The test s cores results conducted by Dr Mazabow were varied. Some indicate
that A BL is a child of high- average to above- average cognitive- intellectual potential.
Others indicate that poor scores on tests of working memory/ double- mental
tracking, with poorer -than- expected forward- planning, variable concentration
(impacting on her visuomotor tracking speed), and with poorer -than- expected self -
monitoring, and relative fine motor speed/dexterity difficulty on the right side.
Indicative of a subtle cognitive impairment .
[24] Although Dr Mazabow and Ms du Plessis reach a similar conclusion about the
impact of the acci dent on ABL’s future cognitive function, Dr Mazabow points out that
the available information pertaining to the accident suggests that the concussion
sustained was probably mild, following which significant and persisting
neuropsychological deficits would not typically be expected. Significantly, he states
that an ev aluation by a neurologist is required to determine whether the epileptic
episodes represent a post - traumatic epilepsy, and whether there is a nexus with the
accident in question. [emphasis added]
[25] On 6th November 2024, Prof Daliwonga Magazi, a neurologist assessed ABL
conducted the assessment and found that t here were no physical neurological
deficits uncovered during the examination. However, although her head injury would
be categorised as mild, academic research shows that the recurrence of seizures
indicat es her head injury was more significant than a straightforward "mild. " This
answers the question of the nexus between the accident and ABL’s difficulties. A
close monitoring for th e recurrence is crucial so that she should c ommence
appropriate medication.
[26] Mr Rosen’s , an Industrial Psychologist confirmed his report . He concluded
that after graduation, ABL will likely take up a post in the open labour market at a
Paterson B4 level, with a straight -line progression to a C4 level at the age of about
45.
[27] His opinion was based on updated reports by Dr Jason Labuschagne, a
neurosurgeon, Prof Daliwonga Magazi, a neurologist, Dr Mazabow, a
neuropsychologist, and Nina du Plessis, the educational psychologist. The nett effect
flowing from these reports is that ABL will be unlikely to earn up to her pre- morbid
potential but will earn at a lower level and should be compensated accordingly. Mr
Rosen conclude d that s he is likely to continue being employed until normal
retirement age. At an entry level after graduation, the Total Annual Cost of
Employment (2018) would be as follows:
Entry Level after Graduation Post Held at About Age 45
Lower Quartile R 239 344 R 516 504
Median R 283 088 R 606 942
Upper Quartile R 338 055 R 739 823
90th Percentile R 400 471 R 882 086
[28] Questioned on the impact of parental and family background on the
postulated educational outcomes, Mr Rosen conceded he did not take account of
ABL’s parental and family educational background. In his opinion, a f amily ’s
educational background does not necessarily play a role in a person’s academic
path. He did not believe it material to the projected outcomes. While there may be a
truism to this evidence, one can assume that parental and family educational
background will have a degree of influence or encouragement even if the outcomes
are not guar anteed. ABL’s mother is reported to have a degree in T ourism
Management ( NQF7 ) although elsewhere it states that she is employed as a Sales
Assistant. H er father completed Grade 12 and holds a B usiness Administration
Certificate (NQF 5) .
[29] Mr Rosen’s testified that he based his opinion expert reports, and t o conclude
that ABL would attain NQF7 would require that he ignores the entire battery of expert
reports. His conclusion was there would be a differential , ABL’s potential has been
curtailed, even though she is functioning. He conceded it was impossible to predict
the outcome of her difficulties. The concession is correctly made.
[30] It is trite that ABL would be entitled to be compensated to the extent that her
patrimony has been diminished.”2 In Rudman v Road Accident Fund, the court held
that3:
“A physical disability which impacts upon capacity to earn does not
necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity indeed gives rise to
pecuniary loss.”
[31] Given ABL’s tender age at the time of the accident, there is no means to
measure her pre- morbid capacity. The probabilities can only be gauged with
reference to past school reports. T he seizures which are reported to occur 2- 3 times
per month and lead to frequent absenteeism at school . Prof Daliwonga Magazi
makes it clear that the seizures are indicative of not so insignificant head trauma. His
report dispels the notion that there was no nexus between the headaches seizures
and the accident. I accept Prof Daliwonga Magazi’s opinion in this regard. There is in
addition the “ sleeper effect” and the likely deterioration of her performance as she
progresses which was not disputed. [32] Ms du Plessis was emphatic about ABL’s decline. A lthough I agree that as
ABL, progresses to higher grades, there will be more demands on her , I hesitate to
wholesale agree with Ms du Plessis ’ definite view that ABL ‘will’ decline. Ultimately, it
is the exclusive duty of the court to make the final decision on the evaluation
2 President Insurance Co Ltd v Mathews ) Smal lberger JA
3 [2002] 4 All SA 422 (SCA) at para
of expert opinion.4 The prognosis and the degree to which medical intervention and
other treatment s will ameliorate her symptoms is not yet clear . To be fair, Ms du
Plessis stated the decline does not mean ABL will not get a qualification. But for the
accident, she would have obtained a degree.
[33] Essentially, t he diminished earning capacity is based on a range of income
between a qualification for a Diploma and a Degree. T he point made in Southern
Insurance Association v Bailey NO5 is that:
“Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the Court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss .”
[34] Mr Erasmus correctly submitted that the court’s concerns can be resolved by
factoring an appropriate contingency deduction. One of the elements in exercising
that discretion is the making of a discount for "contingencies" or the "vicissitudes of
life” as held in Southern Insurance Association v Bailey NO .
6 The determination lies
in the discretion of the Court.
[35] The actuarial calculations prepared by Ivan Kramer CC dated 26 November
2024 relied on the median Cost of Employment values prepared by Mr Rosen dated
2018. They postulate ABL would have commenced employment at age 23 on C 1
Paterson band and reach a career ceiling by age 45 earning at the D2 level.
[36] They state having regard to the accident, that s he will commence employment
at age 21 at Paterson B4 level and reach a career ceiling by age 45 earning at the
C4 level . Both scenarios contemplate she will retire at age 65. The calculations
factor future salary inflation at the rate of 4.5% pa. The capital value of the
prospective loss was reduced to account for after tax investment return of 7.11%pa
on income. The tax rates applicable for 2022(2023) were applied. T he accident has
4 Frantzen v Road Accident Fund [2022] 3 All SA 657
5
6 Southern Insurance Association Ltd v Bailey NO, 1984 (1) SA 98.
not affected her life expectancy . They applied a 15% contingency deduction for the
prospective value of the income but for the accident and 30.0% value of income
having regard to the accident .
[37] It has been repeatedly held that the calculation of the quantum of a future
amount, such as loss of earning capacity, is not, a matter of exact mathematical calculation. The Supreme Court of Appeal in the Road Accident Fund v Kerridge
(Kerridge)
7 cautioned that c ourts should not readily accept “the assumptions and
figures provided by expert witnesses in personal injury matters without demur.”
[38] As Mr Erasmus correctly point ed out, the actuarial calculation was not based
on the principle set out in the Road Accident Fund v Guedes ,
8 namely that a “Sliding
Scale: ½ per cent for year to retirement age, i.e. 25 per cent for a child applied .”
[39] Parties were called to make f urther submissions and provide supporting case
law. Although Ms Mhlanga submitted that the court should base its determination on
the “current reality”, which means the pre and post morbid scenarios are the same. She submitted a pre- accident calculation contingency deduction of 15% and 2 0%
post-accident yielding a differential of 5% . should apply . On the other hand, Mr
Erasmus contends that a 21 % pre -morbid contingency and a 31 % post - accident
contingency deduction would be appropriate. [40] What must be factored in determining contingencies is the following distinct
feature of this case: there was no official diagnosis or assessment pre- accident since
she was at creche. ABL’s prospects cannot be measured against known fact ors
other than her current performance which make it inconclusive on where she will fall .
The current assessment s indicate she will likely struggle as she advances into more
complex subject material . Questioned about , the degree to which treatment and
professional support will ameliorate her symptoms and reduce these unfavourable
outcomes , the Court was informed good outcomes are possible but are not a
probable scenario.
7 2019 (2) SA 233 (SCA) at para 50.
8 Also referring to Goodall v President Insurance 1978 (1) SA 389 (W )
[41] I accept that the above factors have a negative effect on her prospects . ABL
will not be a “normal competitor.” She will be burdened by the need to manage additional compromising factors following the accident . However, I do not agree with
the fatal opinion about the outcomes. I t does not consider ABL’s innate drive to
succeed or the extent to which medical , psychotherapeutic and remedial support
required will ameliorate the outcomes as she progresses to higher grades . I
nevertheless accept that assistance must commences sooner than later .
[42] Lastly, w hen the unemployment rate is considered, entry in the labour market
is not a given, whether you have a degree or a Diploma. In the result, after applying
the Guedes formular to the pre- morbid scenario, the prospective value of the income
is R10 046 798. When the appropriate contingency deduction of 30% is applied to
the future loss , it leads t o an accrued loss of R 2 912 586. As will be evident below,
the Court as the upper guardian of the minor child considers it prudent to order the
attorneys to cause a Trust to be constituted with certain conditions in the order .
[41] In the result, I make the following order:
a. The defendant is liable for 100% of the Plaintiff’s proven or agreed
damages.
b. The Defendant shall pay to the Plaintiff the total amount of R
2 912 586.00 (Two million, nine hundred and twelve thousand, five hundred
and eighty -six rand only.) in respect of loss of earnings together with interest
ad temporae morae to date of payment, calculated in accordance with the
Prescribed Rate of Interest Act 55 of 1975.
c. The amount in paragraph b is made up as follows:
a. Loss of earnings - R 2 912 586.00
b. Payment will be made directly to the trust account of the Plaintiff’s
attorneys within 180 (hundred and eighty) days from the date of the granting
of this order, the details of such trust account being:
Holder D[…] B[…] I[…]. A[…]
Account Number 1[…]
Bank & Branch N[…] – N[…] G[…]
Code 1[…]
Ref L[…]
d. De Broglio Inc. Attorneys are ordered to cause a trust document to be
created in accordance with the provisions of the Trust Property Control Act, Act 57 of 1988 a nd to pay the capital amount received, after deductions of
their fees and disbursements into the aforesaid Trust account .
e. The trust instrument shall make provision for the following:
i.The appointment of a reputable Trust administrator
ii.That ABL is the sole beneficiary of the trus t
iii.Three trustees will be appointed to administer the Trust one of whom must
include ABL’s parents , and in their absence the other parent to serve as his or
her substitute.
iv.The duty of the trustee(s) to disclose any personal interest in any transaction
involving the trust property.
iv That the ownership of the trust property vests in the trustee(s) of the
trust in their capacity as trustees.
v The Trust to endure until A BL is no longer a dependant.
vi That the trustee(s) be authorised to recover the remuneration of, and
costs incurred by the trustee(s), in administering the undertaking in terms of Section 17(4)(a) of Act 56 of 1996 in accordance with the certificate of undertaking to be provided by the Defendant in paragraph f below .
vii Any other terms to safeguard the trust property and the interest of the
minor child
f. The Defendant is ordered in terms of section 17(4)(a) of the Road
Accident Fund Act 56 of 1996, to reimburse the Plaintiff 100% for the costs of any future accommodation of the minor in a hospital or nursing home, or treatment or rendering of service to her or supplying goods to her arising out of injuries sustained by her in the motor vehicle accident, after such costs have been incurred and upon proof thereof.
g. The Defendant is to pay the Plaintiff’s agreed or taxed High Court costs
as between party -and-party, such costs may include the following: Provided
that same is subject to the discretion of the taxing master:
i.the preparation, qualifying and reservation fees of the experts, consequent upon obtaining Plaintiff’s reports, if any, including the costs of the compilation of such reports, addendum reports and confirmatory affidavits;
ii.The costs of counsel on scale C, including costs incurred in respect of the
settling of the heads of argument for trial.
iii.The costs of 28 and 29 January 2025.
h. The Plaintiff shall, in the event that the costs are not agreed:
a. serve the Notice of Taxation on the Defendant and/or the Defendant’s
attorney of record; and b. allow the Defendant one hundred and eighty (180) days to make
payment of the taxed costs after service of the taxed bill of costs.
i. It is recorded that the Plaintiff did not enter into a contingency fee act
agreement with her attorney of record.
j. The issue of general damages is separated and postponed sine die.
NTY SIWENDU
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
This Judgment is handed down electronically by circulation to the P laintiff ’s Legal
Representative and the Defendant by email, publication on Case Lines. The date for
the handing down is deemed 11 March 2025
Date of appearance: 2 8 and 29 January 2025
Further submissions: 10 March 2025
Date Judgment delivered: 11 March 2025
Appearances:
For the Plaintiff : Advocate Erasmus
Instructed by: De Broglio At torneys
For the Defendant : Ms Mhlanga
Instructed by: The S tate Attorney