SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

CASE NO: 120/2020
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE 08/04/2025
SIGNATURE
In the matter between:

ADVOCATE JEANNE -MARIE LIEBEL N.O.
N[...] S[...] L[...] PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand -down is deemed to be 08
April 2025 at 10:00.


JUDGMENT


Mashile J

Introduction

[1] On 19 November 2011 at approximately 17 h55, the Plaintiff (“Ms L[...]”), was
crossing Langeloop Road to Kamhlushwa Township in Malelane, Mpumalanga Province
when she collided with motor vehicle bearing registration letters and number D[...]
driven by one J Mabuza. In consequence of the collision, Ms L[...] who was nine years
old, sustained serious bodily injuries. The collision exposed the Defendant (“the Fund”)
to an action for damages by the mother and natural guardian of Ms L[...]. Upon
attainment of majority, Ms L[...] took over the claim from her mother.

[2] Subsequently, various experts projected that due to the nature and sequelae of
Ms L[...]’s injuries , a curatrix ad litem be appointed. Following the recommendation, an
application for the appointment of Advocate Jeanne -Marie Liebel as a curatrix ad litem
was launched with this Court. This Court granted an order for her appointment in that
capacity on 24 March 2023. Ms L[...] has since been substituted accordingly.

[3] When this matter served before this Court, the parties had on an earlier date
resolved that the Fund would be 100% liable for damages that Ms L[...] may prove
against it. Additionally, the Fund has agreed to furnish her with a certificate in terms of
section 17(4)(a) of the Road Accident Fund Act 56 of 1996, as amended. The Court was
also advised that Ms L[...] has abandoned her claim for past hospital and medical
expenses because she was treated at a Government Hospital. In the result, only
general damages and loss of earning capacity stand for determination.

[4] Despite delivering a plea, the Fund is fundamentally not defending the action. I
say so because it did not appoint its own experts. In this regard, the Court was advised
that the Fund would use the reports of Ms L[...]. Furthermore, the Fund in fact agrees
with the findings of the various experts save for the contingencies to be applied.
Stripped of all the verbiage, Ms L[...]’s claim simmers down to general damages and
loss of earnings. To prove her claim, Ms L[...] appointed various experts. These were
the following:
4.1 Dr L A Oelofse, an Orthopaedic Surgeon;
4.2 Dr JPN Pienaar, a Plastic and Reconstruction Surgeon;
4.3 Dr Tommy Bingle, a Neurosurgeon;
4.4 Dr DLC Stolp, an Ear, Nose and Throat Specialist ;
4.5 Ms Dorrithe Benade, an Educational Psychologist;
4.6 Mr Stephen Ferreira -Teixeira, a Clinical Psychologist;
4.7 Ms Khanyisa Ntshengulana, an Occupational Therapist;
4.8 Ms Roelin van Niekerk.

Evidence

[5] Dr Oelofse records that Ms L[...] sustained injuries to her head, chest and right
leg. Following the collision, her Glasgow Coma Scale (“GCS”) registered 7/15. An
ambulance conveyed Ms L[...] to Shongwe Hospital where she was stabilised and later
transported to Rob Ferreira Hospital. On admission at Rob Ferreira Hospital, her G CS
had improved to 13/15. Ms L[...] was admitted to the intensive care unit (“ICU”) for
neuro -observation for approximately one month. Thereafter, she was moved to a
general ward for further observation for another month or so.

[6] Dr Oelofse further state d that Ms L[...] was intubated, neurologically observed,
received pain medication and anti -inflammatory medication and skin traction was
applied to her injured right leg while detained in hospital. She received physiotherapy
and was supplied with crutches, which she used to amble around. Once again, on 13
March 2011, she was re -admitted to Witbank Hospital with breathing problems for a
further 5 weeks. There was reference made to a tracheostomy. Ms L[...] suffered
tracheal narrowing following intubation.

[7] When Dr Oelofse was assessing Ms L[...], she complained that since the collision
she encounters breathing difficulties. Additionally, she cannot participate in any
strength -demanding activities, walk long distances, run or climb stairs due to breathing
difficulties. When Dr Oelofse examined her, he established that she presented with a
tender unsightly tracheostomy scar. There was also tracheal narrowing secondary to
prolonged intubation with resultant breathing difficulties.

[8] Insofar as her fractured right leg was concerned, she complained that actions like
standing for long periods, walking long distances, handling heavy objects and squatting
caused her pain. She further told Dr Oelofse that her right leg felt weak. Dr Oelofse
confirmed that Ms L[...] had pain in both knees when she squatted. On examination of
the right leg, Dr Oelofse found that Ms L[...] had wasting of the injured leg: 4 cm over
the right quadricep muscles and 2 cm over the right calf. Clinically, the right leg was 3 .5
cm shorter than the left. She had moderate tenderness over her groin, anterior and
lateral aspects of the right hip, anterior joint line of the right knee and over the medial
and lateral aspects of the tibiofemoral joint.

[9] Dr Oelofse also state d that the range of motion of the right hip is moderately
impaired with mild pain on flexion and abduction. The r ange of motion of her right knee
is mildly impaired with slight pain. He then diagnosed her with a femur fracture, which
has fully united with shortening. The left limb is 4 .8 cm longer than the right. She had an
impaired and painful range of hip movements and residual soft tissue pain. Regarding
future medical treatment, Dr Oelofse states that she will require both conservative and
surgical. He recommended leg lengthening procedure. That said, he warned that due to
the risks involved in undergoing the procedure, it needs to be fully explained to Ms L[...].

[10] Insofar as employment is concerned, Dr Oelofse remarks that Ms L[...] was a
Grade 3 scholar when the collision occurred. He rules her out of strength -demanding
employment but predicts that she will still be suited for light physical work. However,
considering her severe chest injury, she may be limited to work of a sedentary nature.
Finally, Dr Oelofse states that the after -effects of the brain injury should be considered
as it may haunt her with persistent concentration and memory impairments leading to
poor performance in a sedentary work environment.

[11] Dr JPM Pienaar consulted and examined Ms L[...]’s scars occasioned by the
injuries that she sustained during the collision. He noted the following scars:
11.1 A 1.5 cm irregular hyperpigmented scar that is visible and unsightly at the top of
her left eyebrow;
11.2 A visible and unsightly abrasion scar of 2 .5 cm x 2 .5 cm over her right cheek;
11.3 A 3 cm scar on her anterior neck with an opening to her trachea which causes a
fistula;
11.4 Four 1 cm scars where the central lines were inserted that are visible and
unsightly around her right clavicle;
11.5 A 3 cm x 3 cm abrasion scar over her right elbow and an 8 cm x 4 cm scar over
her left shoulder that is also hyperpigmented, visible and unsightly;
11.6 A 2 cm x 2 cm and a 4 cm x 2 cm visible scar over her right thigh;
11.7 A 10 cm x 2 cm irregular, visible and unsightly scar on her left forearm and wrist.

[12] Dr Pienaar state d that some of the scars will be amenable to surgery. That said,
Ms L[...] will still be left with an extensive amount of scarring for her entire life.
Dr Pienaar add ed that the collision has left the patient with serious permanent scarring
and disfigurement, which gravely affects her appearance and dignity. It causes her
severe social anxiety and embarrassment.

[13] Dr Bingle noted that Ms L[...] sustained injuries to her head with scratches on
both cheeks, chest and right upper leg. Neurocognitively, Ms L[...] complained that she
experienced problems with her short -term memory and concentration. She further
stated that she encounters a short temper with episodes of verbal aggression and feels
depressed and frustrated. She is anxious when travelling in a motor vehicle. Ms L[...]
also has chronic headaches most of which is concentrated in the frontal area. The
headaches seem to be responsible for her disturbed sleep pattern.

[14] During inclement weather, Ms L[...] would have chronic pain in the middle of her
chest. She also experiences weakness of her right leg and intermittent pain. Ms L[...]
reported problems with her visual acuity and she has a reduced sense of hearing in
both ears.

[15] Dr Bingle’s estimation is that Ms L[...]’s posttraumatic headaches have become
chronic and are expected to persist in variable degree in the long term. Dr Bingle
concludes that Ms L[...] has suffered a severe traumatic brain injury during the collision.
He states further that following a massive traumatic brain injury of the kind suffered by
Ms L[...], it is expected that neurocognitive and psychological sequelae would be a
matter of course.

[16] It appears that the main reason for referring Ms L[...] to an ENT specialist was
her complaint that her sense of hearing had significantly reduced. As it turned out, there
was nothing clinically wrong with her ears or hearing. That said, Dr Stolp recorded the
following injuries:
16.1 Severe concussive head injury with loss of consciousness and posttraumatic
amnesia;
16.2 Swelling, lacerations and contusion of her face and head;
16.3 Lacerations of the left shoulder and right elbow;
16.4 Fracture of the right femur; and
16.5 Hard blow and contusion to her chest.

[17] Ms L[...] complained that she had difficulty breathing, shortness of breath and
wheezing, which became aggravated even with measured exercise. Her voice was
weak and s he could not increase the volume. This caused difficulty with communication.
Ms L[...] has memory difficulties and a depressed mood. She complained of headaches
and severe neck pain. She experienced dizziness.

[18] From the above, Dr Stolp concludes that Ms L[...] presents with respiratory and
expiratory stridor and poor voice quality. The c linical examination of the ears was
normal. Dr Stolp stated that on direct fibre -optic laryngoscopy, it was noticed that both
vocal cords were fixed and immobile in the paramedian position. This is due to bilateral
vocal cord paralysis secondary to recurrent laryngeal nerve damage. This leads to
upper airway obstruction and poor voice quality. Ms L[...] may require a tracheotomy
with the insertion of a speech valve. She may require further surgery on her vocal cords
to improve airway with a view to possible decannulation in future.

[19] Ms D Benade note d that her assessment revealed that Ms L[...]’s neurological
tests indicated that her neurocognitive performance varies as variances of functioning in
memory, processing speed, problem -solving and abstract reasoning. Ms Benade sa id
that it is possible that Ms L[...] was functioning on a low average cognitive potential. Ms
L[...] presented with an overall below average or borderline cognitive ability during her
evaluation. Considering her level of functioning, it seems that her cognitive potential has
declined.

[20] Ms L[...]’s pre-collision academic potential, according to Ms Benade, is that it is
likely that Ms L[...] would have completed Grade 12 (NQF level 4 and possibly, even
attained a Higher Certificate (NQF level 5) albeit with some failures along the way. For
as long as Ms L[...] receives the necessary intervention and supports as recommended,
Ms Benade predicts that she should be able to pass Grade 12 or NQF4. However, she
thinks that her chances of obtaining a Higher Certificate (NQF level 5) are gloomy
because of the injuries sustained during the collision.

[21] Following his consultation and examination of Ms L[...], Mr Teixeira -Ferreira
record ed that her profile suggested gross deficits in neurocognitive constructs. She
volunteered various cognitive challenges in the form of poor attention and
concentration, forgetfulness and multitasking. This is not surprising, he sa id, because it
is anticipated that a severe brain injury would normally lead to significant long -term
neuropsychological sequelae.

[22] The results of his assessment exposed psychological distress in the form of
severe features of depression, anxiety and PTSD symptoms. From a
neuropsychological perspective, Mr Teixeira -Ferreira considers that the following
accident -related factors will have a negative influence on Ms L[...]’s
academic/occupational functioning:
22.1 Her neuro -cognitive complaints/shortfalls may render her more prone to making
errors in the execution of tasks; she may take longer to complete tasks and may also be
negligent in her work due to her memory problems and poor concentration. This could
have a negative impact on her job performance and thus decrease her effectiveness in
an academic/occupational environment ;
22.2 Ms L[...] has lost confidence in herself due to her accident -related injuries and
scarring which has negatively affected her overall self -esteem post -accident. Negative
self-esteem could impact destructively on her interpersonal and scholastic functioning,
as well as on her future occupational functioning in addition to her enjoyment and
quality of life ;
22.3 Ms L[...]’s depression, anxiety and PTSD symptoms may result in her being less
motivated and driven overall. This, in turn, may hamper her scholastic/employment
opportunities and render her vulnerable in any employment situation ;
22.4 The experience of chronic pain and increased psychological distress, as
evidenced by her anxiety and PTSD symptoms, may take more of a toll on her
emotional resources, thus rendering her less stress -tolerant a nd resilient than she was
pre-accident. This may reduce her ability to meet the psychological demands of
school/work ;
22.5 She reported increased frustration, irritability, and short -temperedness post -
accident. This may render her more prone to interpersonal conflict and/or social
isolation and, as a result, will impact negatively on her interpersonal relationships ;
22.6 Her travel -related anxiety may render her somewhat less attentive upon initial
arrival at work. This could affect her levels of efficiency and productivity at the start of
each day.

[23] Mr Teixeira -Ferreira conclude d that Ms L[...] has suffered a deterioration in her
psychological functioning overall. She presents with a decreased self -esteem, increased
irritability, she is socially withdrawn, sad and frustrated with her situation. Given the
severity of the brain injury, the nature of the symptoms described by Ms L[...] would
have an organic aetiology and are in -keeping with severe head injury sequelae.

[24] Ms K Ntshengulana note d and confirm ed Ms L[...]’s collision injuries as per the
findings of the other experts. The complaints of Ms L[...] to her were fundamentally akin
to those captured in the various medico -legal reports that I have already traversed
supra. Ms Ntshengulana record ed that Ms L[...]’s physical perspective will be limited in
her choice of occupation because she will not be able to cope with any occupation of
her choice. Having regard to the outcome of her assessment . Ms L[...] will not be suited
for any strength -demanding work or where she will be required to stand for almost an
entire day, walk, climb stairs for prolonged periods, reach/assume elevated postures or
assume low level tasks involving the right lower limb for prolonged periods.

[25] Ms L[...] will always be at a disadvantage and is not an equal competitor in the
open labour market. Her work options have significantly diminished. It is anticipated that
she will struggle to secure employment for which she is qualified, and which may be
appropriate to her physical condition. Ms Ntshengulana states that even if Ms L[...] were
to rigorously follow the recommended treatment interventions – surgical intervention,
pain management and rehabilitation, her physical function and comfort is only expected
to improve marginally.

[26] It is likely that she would never be able to meet the demands of full light work and
any work of medium to heavy physical demands. This could mark a restriction on her
ability to ever attain work in fields requiring these demands. Ms L[...]’s cognitive
difficulties as well as poor conation will probably prevent her from coping with high semi -
skilled and skilled occupations. In this regard, Ms Ntshengulana state d that she agrees
with Ms Benade, Educational Psychologist, that the patient’s chances of achieving a
higher qualification have reduced.

[27] Ms L[...] presents with various neuro -behavioural and neuropsychological
challenges. These factors will negatively affect her general functioning and therefore her
work pace, productivity and efficiency. She will be prone to disagreement, which will
negatively affect her working relationships. Ms Ntshengulana state d further that
considering her overall presentation, Ms L[...] is best suited for unskilled manual work.
Thus, she will struggle to reach her pre -accident work potential especially considering
that she would have been able to complete NQF 5 qualification pre -collision .

[28] Ms Ntshengulana conclude d that the resultant symptoms presentation has
rendered Ms L[...] distinctly vulnerable within the open labour market. It is highly likely
that she will continue to experience prolonged periods of unemployment and may
remain unemployed for the remainder of her life if her assessment outcomes are
anything to determine this. Ms L[...] may ultimately become more suited to acquire work
within protective employment. However, in the South African context it is very difficult to
find institutions that offer supportive employment. Supported employment may not
necessarily be equally gainful as working in the mainstream open labour market. This
further underscores the fact that Ms L[...]’s chances of gainful employment will be
severely curtailed.

[29] According to Mesdames van Niekerk and Rautembach, it is anticipated that the
patient would have had the capacity to qualify with an NQF level 5 qualification at the
end of 2022. Thereafter, she would possibly have applied for internships or learnerships
to gain experience. The Industrial Psychologists suggest that she would have earned
comparable to the Koch Semi -skilled Lower level (2023 terms) as per market research,
by approximately July 2023. After approximately 24 months, Ms L[...] might have
obtained employment within capacities such as call -centre operator, switchboard
operator, sales assistant, receptionist, typist, data capture clerk, administrative
assistant, etc.

[30] In this capacity she could have been able to earn according to the Koch Semi -
skilled Median level. As she gained experience in such capacity, she could have
progressed by means of promotions to a position such as personal assistant, senior
administrative clerk, payroll administrator or HR clerk, etc. In such a position she would
earn comparable to a Paterson B1 basic median salary at the age of 45. Thereafter
inflationary increases would be applicable until the normal retirement age of 65.

[31] Post the collision, Ms L[...] experiences chronic pain and dysfunction and her
physical scope of employment has been reduced, even after successful treatment, she
will remain best suited for work of a sedentary nature to limited light work. The Industrial
Psychologists refer to the medico -legal report of Ms Ntshengulana whose opinion is that
Ms L[...] is likely to experience extended periods of unemployment because her
involvement in the collision has rendered her unemployable in the open labour market
within fields requiring above a light physical demand level and those needing high level
cognitive skills. Like Ms Ntshengulana, the Industrial Psychologists conclude that Ms
L[...] is unemployable in the open labour market.

Issues

[32] Now that the issue of liability has been settled, this Court is faced with the
determination of a causal link between the injuries suffered during the collision and the
ensuing loss claimed by Ms L[...]. Once that has been decided, the question of loss of
earning capacity of Ms L[...] will come into focus. Lastly, given the nature of Ms L[...],
what award should this Court make under general damages.

Legal Framework

[33] It is trite that primarily there are two ways in which the court can approach the
subject of loss of earning capacity. These are firstly, the court may ascertain a practical
and realistic amount of loss based on the verified facts and the existing circumstances
of the case or secondly, the court may, with reference to mathematical computation,
determine an amount made on the demonstrated facts of the case using such
calculation as a foundation for its award. See in this regard the case of Southern
Insurance Association v Bailey N.O .1

1 Southern Insurance Association v Bailey N.O . 1984 (1) SA 98 (A) .

[34] At times the court is faced with instances where there exists no sufficient
information. In those cases , the “gut feel” approach is normally ideal , the proviso being
that the Plaintiff puts at the court’s disposal adequate evidence to enable the court to
appraise such financial loss.

[35] This Court is already exposed to the actuarial report of Mr Potgieter containing
mathematical computation. In the circumstances, it will be sensible to utilise it to
determine an amount made on the demonstrated facts of the case. With the figures
suggested by Mr Potgieter, this Court will apply the usual contingencies such as:
35.1 The possibility of mistakes having been made in the determination of the life
expectancy of Ms L[...];
35.2 Accidents which may affect her earning capacity and life expectancy ;
35.3 Circumstances which would increase or decrease her cost of living;
35.4 The likelihood of illness, inflation and adjustment for costs of living allowance;
35.5 The fact that Ms L[...] lives in a violent and lawless neighbo urhood, which may
tend to increase the risk of her being killed or assaulted;
35.6 The likelihood of Ms L[...] being fired or retrenched;
35.7 Ms L[...]’s age ; and
35.8 Ms L[...]’s work history.

[36] The list above of possible contingencies is meant to serve as guidance only and
should not be regarded as comprehensive. However, it is also true that one should not
always assume that the worst will happen to a person in Ms L[...]’s position. In this
regard see Southern Insurance Association Ltd v Bailey N.O2 where Nicholas JA
expressed it in the following terms:

“Where the method of actuarial computation is adopted in assessing damages for
loss of earning capacity, it does not mean that the trial Judge is ‘tied down by
inexorable actuarial calculations ’. He has ‘a large discretion to award what he

2 Southern Insurance Association v Bailey N.O . 1984 (1) SA 98 (A) at 99E -G.
considers right ’. One of the elements in exercising that discretion is the making of
a discount for ‘contingencies ’ or the ‘vicissitudes of life ’. These include such
matters as the possibility that the plaintiff may in the result have less than a
‘normal ’ expectation of life; and that he may experience periods of unemployment
by reason of incapacity due to illness or accident, or to labour unrest or general
economic conditions. The amount of any discount may vary, depending upon the
circumstances of the case. The rate of discount cannot, of course, be assessed
on any logical basis: the assessment must be largely arbitrary and must depend
upon the trial Judge ’s impression of the case. In making such a discount for
contingencies ’ or the ‘vicissitudes of life ’, it is, however, erroneous to regard the
fortunes of life as being always adverse: they may be favourable.”

[37] Insofar as general damages are concerned, it has been remarked in many
different cases and writings that making an award normally appeals to the presiding
judge’s sense of reasonability and fairness. These concepts are no doubt often
nebulous in the extreme especially under circumstances like the present where the
court does not have an all -inclusive pre -collision background of Ms L[...] to compare to
her post-collisio n. To drive the point home, it could be instructive to refer to the Law of
Third Party Compensation by H.B. Klooper where the following is stated:

“Fairness and reasonableness mean that the claimant must be sufficiently
compensated for the injuries suffered, but conversely also mean that the
inordinately high award should not necessarily burden the defendant. Stated
differently, fairness and reasonableness also mean that the award for non -
pecuniary damage is made with compassion for the plaintiff but, with reference to
the particular circumstances of every case, with a tendency to err in favour of the
defendant.”

[38] The above should be contrasted with what was stated in the case of Wright v
Multilateral Motor Vehicle Accident Fund 1997 cited in Corbett and Honey The Quantum
of Damages in Bodily and Fatal Injury Cases vol 4 at E3 -31 (N),3 quoted with approval
by Navsa J A in Road Accident Fund v Marunga4 where Broome DJP said:

“I consider that when having regard to previous awards one must recognise that
there is a tendency for awards now to be higher than they were in the past. I
believe this to be a natural reflection of the changes in society, the recognition of
greater individual freedom and opportunity, rising standards of living and the
recognition that our awards in the past have been significantly lower than those in
most other countries.”

Evaluation

Loss of Earning Capacity

[39] There is no question that Ms L[...] was physically not compromised prior to the
collision. She had not undergone any surgical operations stemming from any kind of
accident and had not been treated for any medical condition. The injuries that she
sustained in that collision have left her noticeably disabled. The injury to her femur has
shortened her right leg by 3.5 cm. This will probably cause pain to her lower back
ultimately, states Dr Oelofse. Additionally, she now experiences difficulties with walking
for long distances and climbing lots of stairs.

[40] Dr Pienaar states that while some of her scars will be open for resolution by
plastic and reconstruction surgery, many of them, which are equally unsightly, will
remain unamenable to surgery. The scars have stolen her confidence. The wheezing
coming from her chest and the poor voice quality does not make her feel any better.

[41] Her head injury has been described as massive due to the length of the amnesia
accompanying the collision. Ms L[...] does not have any recollection of the collision and

3 Wright v Multilateral Motor Vehicle Accident Fund 1997 cited in Corbett and Honey The Quantum of
Damages in Bodily and Fatal Injury Cases vol 4 at E3 -31 (N) .
4 Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) para 27.
how she ended up lying in hospital. Her G CS registered 7/15 at the scene of the
collision and 13/15 after admission in hospital.

[42] Academically, it is not easy to assess Ms L[...] pre-collision because this Court
does not have any school reports albeit that there is family background information that
can be utilised for determining her likely scenario. The Educational Psychologist relied
on such information to suggest that before the collision Ms L[...] would ultimately have
passed Grade 12. Thereafter, she would have proceeded to obtain an equivalent of
NQF Level 5 even though such accomplishment would have come with challenges.

[43] What this Court knows of Ms L[...]’s pre -collision education is that she started
school at the age of five. She failed Grade 1, passed Grade 2 and did not complete
Grade 3 because of the collision but was nonetheless promoted to Grade 4. Ms L[...]’s
post-collision academic records unearth poor performance. That said, it is not easy to
decipher whether this would have been the case had the collision not occurred
especially given her repeat of Grade 1. However, this Court will assume that her post -
collision performance is attributable to the severe head injury with all its attendant
sequelae as described by the Psychologists and the other relevant experts.

[44] I find the reference to the extract from the Newsletter by Robert J Koch and his
book “The Quantum Year book” by Counsel for Ms L[...] instructive. The learned author
states that there are no fixed rules as regards general contingencies and one of his
helpful guidelines is that of the sliding scale contingency theory: “Sliding scale: ½% per
year to retirement age, i.e. 25% for a child, 20% for a youth and 10% in middle age.” As
I have stated supra , the assessment of loss in Ms L[...]’s case is that there is virtually no
information pre -collision against which to measure her post -collision performance.

[45] Ms Ntshengulana thinks that Ms L[...] can be accommodated in a protected
employment environment but that and given the South African gloomy economic
outlook, she can safely be regarded as unemployable. She expresse d that view based
on Ms L[...]’s physical disability coupled with her cognitive deficits as established by the
Psychologists. I tend to agree with the assessments of the various experts because
Ms L[...]’s orthopaedic injuries are severe. I am referring here to her leg that is now
3.5 cm shorter than the other, her wheezing chest and unsightly scars that are not
amenable to surgery. Added to these are her cognitive difficulties.

[46] The upshot of all the above is that she will enter the open labour market with a
disadvantage compared to those who do not have any physical or cognitive challenges.
All these said, her pre -collision life cannot be determined with some level of acceptable
precision because of her age when she became involved in the collision and the lack of
school reports for the period. Thus, what she would have become remains very
speculative. This scenario calls for a higher contingency.

[47] I have had regard to the calculation of the Actuary, Mr Potgieter, which is based
on the postulations of the Industrial Psychologist. I noted that his calculation does not
include any contingencies as he has rightly left it to the discretion of this Court. While
there is talk of residual working capacity by some of the experts in this matter, they are
also quick to disregard it because of Ms L[...]’s cognitive deficits. I will accept that she is
unemployable. Having considered the evidence levied before court in the form of
reports of the various experts, I believe the following will be fair:

Past Loss of Earnings
47.1 Pre-morbid: R32 726.00 less 5%= R31 089.70;
47.2 Post-morbid: R3 257 084.00 less 25%= R2 442 813
Total : R2 473 902.7 0.

[48] Turning then to general damages, i t is trite that the utilization of previous
comparable awards as a guide or foundation in the determination of non -pecuniary loss
must be preceded by two principles and these are that only the general award and not a
comparison of every detail is taken into account to determine an appropriate amount
and that comparison to previous awards is not the technique of evaluating non -
patrimonial damage but only serves as a trend. It cannot be used in such a way to
prohibit or restrain the discretion of the court. See, Protea Assurance Co Ltd v Lamb .5
This is the attitude with which this Court approaches the case authority mentioned by
Ms L[...]’s Counsel.

[49] Of the six cases that Counsel for Ms L[...] presented to this Court as being
comparable to Ms L[...]’s case, I find Kgomo v Road Accident Fund6 and Alexander v
Road Accident Fund7 to be more appropriate. That said, it is accepted that it is not
possible to find a match in these cases. Thus, it is not surprising that for example, in the
Kgomo case there is a compression of the brain caused by progressive extra -dural
haemorrhage. In the Alexander case, it appears that the only distinguishing injury is the
poor vision in the right eye of the injured, an injury that is absent in casu .

[50] Counsel for Ms L[...] proposes an amount of R1 500 000.00. The Kgomo and
Alexander cases, which are both serious in their own right, awarded R1 470 000.00 and
R1 554 000.00 respectively . The difference between the two is a negligible amount of
R84 000.00. Inconsequence, I do not think it is necessary to differ with Counsel for
Ms L[...] on the amount that he proposes, R1 500 000.00.

[51] I note that Counsel for Ms L[...] proposes costs at Scale C of party and party.
Scale C and B are almost punitive. I am not satisfied that Counsel for Ms L[...] has
supplied adequate reasons to enable this Court to order payment of costs above the
ordinary party and party costs.

[52] Against that background, I make the following order:
1. The Fund is 100% liable for payment of the amount of R3 973 902.00 being
general damages of R1 500 000.00 and R2 473 902.00 for l oss of earnings .
2. The Fund is liable for payment of the i nterest at the aforesaid sum at the
prescribed legal rate of interest a tempor e morae calculated , if the amount is not settled
within 14 days, from date of judgment to date of payment .

5 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A ).
6 Kgomo v Road Accident Fund 2011 JDR 1052 (GSJ) .
7 Alexander v Road Accident Fund 2020 JDR 0537 (GNP) .
3. The Fund shall furnish a section 17(4)(a) certificate for the future hospital and
medical expenses of Ms L[...] to Advocate Liebel .
4. The Fund shall pay the costs of Advocate Liebel to date, including those of two
Counsel, where applicable.



B A MASHILE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA

Appearances
Counsel for the Plaintiff : Adv A R van Staden
Instructed by: Frans Schutte & Mathews Phosa Inc
C/O SDJ Inc

Counsel for the Defendant : Adv S Manakana
Instructed by : State Attorney, Mbombela

Date of Judgment: 08 April 2025