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1. The Plaintiff is the biological mother of the eight -year-old minor . The minor was
knocked down by a vehicle on 21 October 2020. The minor was 3 years and eleven
months old when the accident occurred. The Defendant is the statutory body
established under the Road Accident Fund Act, 56 of 1996 (‘the RAF Act ’) to pay
compensation for loss or damages wrongfully caused by driving motor vehicles.

2. The minor sustained a fracture line of the skull extending from the left occipital
bone to the foramen magnum.1 The minor did not lose consciousness at the scene of
the accident. She was able to crawl out from under the van that knocked her but
experienced headaches and vomiting soon after the accident. A radiological
examination of her brain showed generalised swelling but no haemorrhage or fluid
collections between the layers that cover the brain tissue. She suffered her first post -
traumatic seizure two days later. The frequency of seizures increased and required
increased medication for control.

3. The Plaintiff has claimed damages for past and future hospit al and medical
expenses. She claimed R4 884 280 for loss of earning capacity and R2 500 000 for
general damages.

4. The minor was assessed by Dr A. J. Richardson (‘Richardson ’), a Neurologist ,
on 21 February 2022 and Dr V Radebe (’Radebe ’), a Neurosurgeon on 26 June 2024.
Richardson obtained the history that the minor was brought home conscious after the
accident but complained of headaches and vomiting. The minor was admitted to
Tygerberg Hospital. She spent five days in hospital. The minor was in a crech e before
the accident. She returned several months later. Richardson and Radebe relied upon
the hospital assessment of the minor as having sustained a moderate traumatic brain
injury. They agreed that the combination of post -traumatic epilepsy , ADHD, and post -
traumatic headaches would negatively affect the minor ’s schooling and her vocational
prospects.


1 The occipital bone is one of the posterior bones that make up the skull. The foramen magnum
is a hole where the spinal cord enters the skull in its posterior aspect .
3

5. Richardson reviewed the hospital notes , which revealed that the minor suffered
seizures daily , requiring admission initially to the Paarl H ospital and then back to
Tygerberg Hospital . The seizures had increased to 3 -4 per day and the postictal state
to about twenty minutes. The minor became increasingly confused, with a personality
change , regression in her speech and language, and became inc ontinent of urine. An
MRI scan was performed on December 4, 2020 , and the results were normal . An EEG
was normal. Her initial medication for seizure control was weaned and stopped. She
was commenced on dual anti-convulsive therapy in January 2021, as her s eizures
continued at a frequency of about 4 -5 per day.

6. The minor began displaying signs of hyperactivity and inability to sustain
attention in the aftermath of the accident. The minor remained on anti -epileptic
medication. Richardson had initially assessed the minor as su staining a mild closed -
head injury with post-traumatic epilepsy . She did not expect any neurocognitive deficits
from such an injury. She did qualify his finding by stating that long-term psychological
sequelae are poss ible. Richardson expressed that the minor had reached maximum
medical improvement.

7. The minor was formally diagnosed with ADHD in April 2023 and uses Ritalin
twice daily.

8. The Neuropsychologists obtained a more florid history and their test results
reveal ed extensive neuropsychological deficits. The Plaintiff -appointed
Neuropsychologist noted that the minor suffered from post-traumatic epilepsy and
ADHD . The minor exhibited fine and gross motor and visuomotor integration
difficulties , which all suggested that the minor ex[experienced a more severe brain
injury . The Minor obtained a global IQ score of 96 , which the expert considered to be
in the average range. Her verbal score was just below average at 87, but her
performance score at 100 was average.

9. In the joint neuropsychology minute, the Neuropsychologists agreed that the
minor suffered a ‘significant ’ brain injury. They referred to the fracture of the occipital
bone , which suggested a substantial impact on the head. They accepted the
Neurophysicians' opinion that the minor had suffered a moderate traumatic brain
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injury . They documented a wide range of neuropsychological symptoms relayed by
the minor ’s mother. These complaints included attention, emotional, temper, memory ,
speech and language difficulti es. The minor was hyperactive, exhibited disruptive
behaviour, suffered nightmares and had frequent headaches. She had poor balance
and was clumsy with her hands. The minor receives Epilim and Lamotrigine for the
treatment of her epilepsy , Risperidone for her behavioural problems, and paracetamol
for headaches. They agreed that the accident had and continues to have a significant
negative impact on the minor ’s psychological well -being. Her interaction with her
peers has been affected. They anticipate that the minor will become increasingly
socially isolated , impacting on her social skills development. They speak of the
complex interplay between neuropsychological and secondary psychological factors
where cognitive impairments can mimic conditions such as ADHD. Emotional distress
further exacerbates cognitive dysfunction.

10. The tests performed by the Neuropsychologists revealed e xtensive difficulties .
Their results confirmed much of the n europsychological symptoms reported by the
mother. Their opinion is that a significant brain injury sustained at a young age typically
results in a poorer outcome as the brain is developing and , therefore, susceptible to
widespread neurological disruption that impacts ongoing cognitive, emotional , and
academic development. They regard the deficits as being permanent and the
prognosis for improvement of her psychological and psychiatric difficulties is poor.

11. The minor ’s speech assessment revealed marked cognitive and cognitive -
communicati ve deficits , as well as communication impairments. The Speech
therapist ’s report continues the theme of florid post -accident sequelae impacting the
minor ’s speech modalities. The Therapist notes that her findings are con sistent with
the findings of the Plaintiff -appointed Neuropsychologist. She considered the speech
impairments to be permanent.

12. The Defendant -appointed Educational Psychologist , Dr X S Fakude , who
assessed the minor on 24 April 2024 , found that the minor experienced difficulties in
all areas of learning, including spelling and mathematical operations. She was
functioning below the average range of intelligence. The expert expressed the opinion
that it was probable that the minor ’s cogn itive abilities and level of functioning
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deteriorated. His assessment revealed cognitive deficits in attention, complex motor
speed, verbal learning and executive functions. The Plaintiff -appointed Occupational
Therapist confirmed the global deficits identified across the reports.

13. The experts obtained the history that the minor did not have any adverse
cognitive deficits or suffered epilepsy before the accident. The mother had an
uneventful pregnancy, and the minor attained her d evelopmental milestones within
expectations. She was at least of average intelligence. Her family ’s educational
achievements suggested that the minor would have probably progressed through
mainstream schooling and obtained a tertiary qualification. The Def endant ’s key
experts , i.e., the Clinical Psychologist and the Educational Psychologist , assessed the
minor at least two years after the assessments performed by the Plaintiff -appointed
experts. Their assessment results and opinions confirm the severity of the post -
accident neuropsychological deficits and, in some instances, their worsening with the
elapse of time. On an overall conspectus, this matter underlines the principle in brain -
related injuries that the initial injury may be mild, but the outcome or sequelae could
be far more severe. It is impossible to address every deficit that the experts have
identified, but it suffices to note that the Court has considered all the reports filed.

GENERAL DAMAGES

14. General damages are awarded for physical and psychological pain and
suffering. There are usually two phases to injury assessment for general damages;
the acute phase refers to the period from the time the injury is sustained to the time
the injury stabilises or its sequelae disappear. The chronic phase refers to the ongoing
symptoms and sequelae of the injuries, which may sometimes endure for the lifetime
of the injured person. The assessment of general damages has introduced terms such
as maximum medical improveme nt and percentage of whole -body impairment to
determine whether general damages qualify for compensation. Serious injuries usually
elicit the most physical pain and suffering and loss of life ’s amenities in the acute
phase. The outcomes in the chronic or o ngoing phase of injuries may be variable. A
serious injury with a good outcome may result in minimal pain, suffering, and loss of
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amenities, and the inverse may also apply. A mild injury may evolve into long -term
difficulties as it progresses, as is the position in casu .

15. The Plaintiff submitted two cases for the Court to consider.

15.1. Pietersen obo J St I v Road Accident Fund [2011] ZAGPJHC 73; 2012
(6A4) QOD 88 (GSJ) , involved a 4 year and 7-month -old male who
suffered a brain injury resulting in daily seizures and cognitive defects .
The experts predicted that the minor would not complete mainstream
schooling and would be vulnerable in the labour market. The minor also
suffered degloving injuries to bo th feet, his buttocks , right shoulder, right
forearm, right side of his face, scalp and occiput . He had severe
disfiguring scars despite repeated skin graft procedures . The value of
the Court ’s award in present -day terms is R1 532 000.

15.2. Maribeng v Road Accident Fund ,2021 (8A4) QOD 39 (GNP) , involved a
4-year-old male who suffered severe brain damage as well as facial
lacerations and a right femur fracture. The brain injury resulted in serious
cognitive and higher mental processing sequelae as wel l as emotional
and behavioural problems . There was a 15% risk of developing epilepsy.
The minor ’s education was affected . The history obtained from the
mother included complaints of restlessness, headaches, hyperactivity,
and memory problems. The value of the Court ’s award in present -day
terms is R 1 963 000.

16. The Defendant submitted ten cases for the Court to consider. Six were from the
previous century , and three predated the case of Marunga , in which the modern
tendency to award a h igher quantum of damages was taken into account when
awarding general damages .2 That left just one case , which was incomparable as it
involved a 36 -year-old policeman who suffered a whiplash injury with no significant
sequelae. Some legal practitioners need to reread the memorandum concerning the

2 Road Accident Fund v Marunga 2003 (5) SA 164 (SCA)
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selection of comparable cases that will assist the Court in determining a fair award for
general damages. To its credit, t he Defendant submitted that an award of R1 .8 million
would be reasonable in this case. The Plaintiff contended for an award of R2 million.

17. The younger the child, the longer they would have to suffer the long-term
sequelae of brain injuries. This case does not clearly illustrate the distinction between
acute and chronic sequelae as clearly as other cases do . There appears to be a
relentless progression of the brain injury, commencing with protracted seizures and
then cognitive and behavioural fallout that will impact the minor ’s scholastic and
vocational pursuits. The Court is persuaded to award the amount contended for by the
Plaintiff and does so without hesitation.

LOSS OF EARNINGS

18. The Industrial Psychologists predicted , based on their assessments and the
opinions of the other experts instructed by both partie s, that the minor would have
progressed beyond grade 12 to either a diploma or degree qualification at the National
Qualifications Framework level 7. She would have entered the job market in 2037 or
2038 and gradually advanced in her career towards a super visory or specialised role ,
retiring at age 65 . They suggested earnings in line with STATSSA's earning
trajectories, as contained in Robert Koch ’s 2024 Quantum Yearbook. The figures cited
are R300,000 to R421,000 to R535,000 per annum. They suggested that the income
growth would have been gradual from age 22 and would have peaked between the
ages of 45 and 53.

19. In the injured scenario, the Industrial Psychologists agree with the experts who
suggest that the minor should be placed in a facility for learners with special
educational needs. She will not be able to complete a grade 12 level of education and
will, therefore , one day need to compete as an unskilled manual labourer. She would
be vulnerable in the open labour market and will probably depend on accommodations
and sympathetic employment opportunities. They disagree on the minor ’s potential
injured earnings capacity. The Plaintiff -appointed Industrial Psychologist predict ed a
salary level in line with the lower quartile earnings of R27,600 per annum. The
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Defendant -appointed Industrial Psychologist suggested an earnings potential with a
median range for unskilled workers of R49,800 per annum between the ages of 40
and 45 ye ars. Thereafter , inflationary increases would have applied.

20. The Court can take judicial notice that the current minim um wage amounts to
R56 845.32 annually as of 1 March 2025 for a 38-hour work week . The injured
earnings suggested by the plaintiff -appointed Industrial Psychologist are too
pessimistic . The Court considers that once experts predict a residual earning capacity ,
as opposed to suggesting that an injured person is unemployable, it is then incumbent
upon them to recommend reasona ble earnings. The earnings suggested by the
Defendant -appointed Industrial Psychologist, nevertheless, fall below the minimum
wage. The Plaintiff -appointed Industrial Psychologist pitched the minor ’s earnings at
the SASSA annual grant levels. There would b e no incentive for a person to work if
they can remain at home and collect the social security grant.

21. The Plaintiff provided an actuarial calculation dated 18 March 2025 at the
Court ’s request . The table below reflects the capital value of the loss of ea rnings that
the court will use in calculating the claim under this head of damages. The Court notes
that the uninjured earnings are based upon the consensus between the two Industrial
Psychologists. The calculation of the earnings suggested by the Plaintiff -appointed
Industrial Psychologist yields R 599 800. The Court has not considered this calculation.
The contingency deduction that the Court shall apply to uninjured earnings is 22
percent in line with the recommendation in Guedes .3 The Industrial Psychologists
predicted that the minor would have commenced work at age 22 and retired at age 65
in the uninjured state. She would thus have worked for 43 years. The Plaintiff
suggested that the Court apply a 25 percent deduction to uninjured earnings and a 40
percent deduction to injured earnings. The Defendant suggested a 30 percent
contingency deduction for uninjured earnings and a 35 percent deduction for injured
earnings. The injured career progression was customised to fit the circumstances of
the minor. The Court has considered the basis for the respective submissions and
considers a 30 percent deduction from injured earnings to be fair. The Industrial

3 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19; 2006 (5) SA 583 (SCA) (20 March
2006) at para 9
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Psychologists agreed on the career path for the injured state. There is no basis to
apply a higher contingency deduction because the Court elected to use the higher
earnings projection suggested by them.

Uninjured
earnings Injured
earnings Loss of
earnings
Future earning
capacity R 6 742 400 R898 900 R5 843 500
Contingency
deduction 21.5 % 30%
R5 292 784 R629 230 R4 663 554

22. The Court accordingly awards the Plaintiff the sum of R4 663 554 for the
minor ’s loss of earning capacity.

CONCLUSIONS

23. The Court was asked to adjudicate the claims for general damages and loss of
earnings . The parties agreed to submit their expert reports , supported by affidavits,
pursuant to Rule 38(2), and that the Court would consider the reports in place of their
testimony . The Court directed the parties , pursuant to Rule 39(20), and they agreed to
provide concise written and oral arguments on the remaining unresolved issues,
stipulating that the matter would be determined based on the papers properly before
it.

24. The Court awards R 2 million in general damages and R4,663,554 for loss of
earning capacity , totalling R6,663,554 . The Court co nsiders this award to be fair and
equitable in the circumstances of this case. The Plaintiff sought her taxed or agreed
costs as between party and party and Counsel ’s costs , as taxed ar agreed on scale B .
The Defendant agreed that the costs order sought is appropriate. The following order
is based on the draft submitted on behalf of the Plaintiff.

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ORDER

1. The Defendant shall pay the Plaintiff ’s attorneys the sum of R 6 663 554 (six
million, six hundred and sixty-three thousand, five hundred and fifty -four
rand) (‘the capital ’) by electronic transfer to their trust account , the details
whereof are set out hereunder ,
2. Defendant shall provide an undertaking in terms of Section 17(4)(a) of the
Road Accident Fund Act 56 of 1996 (‘the undertaking ’), to compensate the
Plaintiff for 100% of the costs relating to the future accommodation of the
minor, Cay -Leigh Koen , in a hospital or nursing home or treatment of or
renderi ng of a service or supplying of goods to the minor, after the costs
have been incurred and on proof thereof and arising from the collision which
occurred on 21 October 2020,
3. Defendant shall pay Plaintiff ’s taxed or agreed costs as between party and
party , including the costs of the postponement of the matter on 6 November
2024 and 20 February 2025,
4. Defendant shall pay the taxed or agreed costs of Counsel, including the
costs of preparing heads of argument on scale B,
5. Defendant shall pay the capital within 180 days from the date of this order ,
6. The defendant shall be liable for interest on the capital, which shall run from
14 days following the date of this order, and for any costs incurred in
obtaining the capital ,
7. The Defendant shall pay the taxed or agreed fees of the following expert
witnesses and the costs attached to the procurement of medico -legal
reports and other reports, joint minutes, as well as any other related costs ,
including x -rays, MRI scans, and CT scans provided that those reports have
been served on the Defendant and filed in Court,
7.1 Dr A J Richardson,
7.2 Dr D Ogilvy,
7.3 Ms L Crous,
7.4 Ms R De Wit,
7.5 Ms N Colley,
7.6 Munro Forensic Actuaries