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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case Number: 16623 /2018
In the matter between
B[...] S[...] P[...] obo
H[...] N[...] K[...] PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
(RAF Ref: 503/1254 6291 -Link no: 4376858 )
JUDGMENT
Date of hearing: 25 March 2025
Date of judgment: 31 March 2025
BHOOPCHAND AJ:
1. The parties have submitted this matter for the adjudication of the Plaintiff’s
claim of general damages on behalf of the minor, H[...] K[...]. The Plaintiff is the
biological mother of the minor. The Court granted an order by agreement on 25
March 2025, which covered the claims for loss of earnings and past and future
medical expenses. The parties agreed that the claim for general damages is to be
adjudicated based on the expert reports filed, supported by affidavits under Rule
38(2), the papers properly before the Court, and the written and oral arguments
presented by their legal representatives under Rule 39(20) .
2. The minor was born on 15 September 2016. He was injured when seven
months of age in a motor vehicle accident on 29 April 2017 . He is now eight years
and seven months old. The Plaintiff claimed general damages of R3 million but
submitted that an award of R2.7 million was appropriate during the oral argument.
3. 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. The Defendant submitted that an
appropriate award in this matter would be R1.5 million. Both parties referred to
delictual awards made in previous cases adjudicated by our Courts. The Plaintiff filed
expert reports from a Neurologist, a Clinical Psychologist who did a
neuropsychological assessment, a Psychiatrist, a Speech Therapist, and an
Occupational Therapist. The Defendant filed a r eport by an Educational Psychologist
for the claim under this head of damages.
4. The minor was airlifted from the accident scene to Red Cross Children’s
Hospital. He suffered extensive injuries to his brain . The injuries included a fracture
of the right c lavicle and a supracondylar fracture of the humerus , which is the arm
bone above the elbow . The Plaintiff did not file an Orthopaedic report . The Plaintiff
does not rely on the injuries to the right upper limb for her claim for general
damages. As for the brain injury, the minor sustained a linear fracture through the left
parietal bone , extending to the coronal suture. There was an extradural and a
subdural haematoma underlying the fracture.
5. The minor ’s Glasgow Coma Scale score on admission was 7/ 15. He required
intubation and ventilation and underwent surgery on 30 April 2017 to insert
intracranial pressure and Licox monitor s1. By 2 May 2017, the minor’s left
frontoparietal skull remained swollen. There were extensive bilateral low-attenuation
areas in the frontal, temporal, parietal, and occipital lobes of the brain, suggestive of
infarct s of brain tissue . Subarachnoid blood was noted on the left surface of the
sulci.2 The surface sulci were effaced diffusely , and the poor grey-white matter
differentiation suggested brain swelling. There was a minimal midline shift of 2mm .
The parietal subdural haemor rhage measured 3mm in additi on to that in the
interhemispheric fissure and over the tentorium cerebelli.3 The minor suffered a focal
seizure on 2 May 2017.4 His CT scan showed severe traumatic brain injury. The
EEG done on 5 May 2017 showed no signs of non -convulsive status.5 The focal
seizure seemed to arise from the left parietal lobe. The intracranial monitors were
removed on 10 May 2017. On 12 May 2017, the GCS was 9/12 after the minor was
extubated and improved to 10/15 on 14 May 2017 and 14/15 on 17 May 2017. The
hospital notes recorded a right third cranial nerve palsy , traumatic retinal
haemorrhage, and cortical blindness6.
6. The minor has not experienced seizures since being discharged from the
hospital. He can see normally with both eyes, meaning that the cortical blindness
was transie nt. He began walking at 15 months and has been mobile and active
since. He began speaking at the age of 3 but remained dysphasic, with difficulty
1 A Licox monitor is a medical device used to measure brain tissue oxygen levels (PbtO ₂) and
temperature. It's commonly employed in neurosurgical and critical care settings to monitor
patients with severe traumatic brain injuries or other conditions that may affect brain
oxygenation. By providing real -time data on oxygen levels in the brain, the Licox monitor helps
healthcare professionals detect and manage cerebral hypoxia, which can be critical for patient
outcomes
2 The sulci, or sulcal markings, referred to in the scan, are grooves or troughs visible on the
brain's surface, giving it its characteristic wrinkled appearance. The elevated areas between the
sulci are known as the gyri. This design provides the brain with a larger surface area, thus
packing more bra in tissue into a confined space of the skull.
3 The tentorium cerebelli runs horizontally, separating the upper cerebrum from the lower part of
the brain, known as the cerebellum.
4 A focal seizure, also known as a partial seizure, originates in a spec ific area of the brain,
typically affecting only one hemisphere. The symptoms depend on the part of the brain involved
and can vary widely .
5 Non-convulsive status, often referred to as Non -Convulsive Status Epilepticus (NCSE), is a
type of prolonged seizure activity that occurs without the dramatic physical convulsions typically
associated with seizures. Instead, it manifests as subtle or non -obvious symptoms, such as
confusion, altered mental status, or unresponsiveness
6 Cortical blindne ss is a condition in which a person loses their vision due to damage to the
brain's occipital lobe, which is responsible for processing visual information. Interestingly, the
eyes themselves remain structurally normal and functional, but the brain cannot i nterpret the
visual signals they send
articulating his speech. The developmental milestones were thus delayed. The minor
suffered nocturnal enuresis till the age of 5, but that has now ceased. The minor had
aggression and attention issues. The school report ed that the minor was not
academically on par with his peers and had issues with attention and hyperactivity .
He was a grade R scholar in 2022. He has no new comorbidities and was not on any
chronic medication.
7. Upon examination on 10 October 2022 , Dr. Richardson (‘Richardson’) , the
Plaintiff -appointed Neurologist, noted a small scar on the minor’s right frontal scalp.
His ha ir had not grown over it. A photograph taken in August 2023 does not show
evidence of the scar. The minor’s cranial nerve examination revealed no
abnormalit ies; in particular, the third cranial nerve paralysis was no longer evident.
Richardson conclude d that the minor suffered a severe head injury with
neurocognitive, neurobehavioral and neuropsychological impairment. She state d that
the minor also demonstrat ed neurophysical abnormalities on examination. It is not
apparent from the report as to what those abnormalities were. She defined the
accident -related head injury to have two distinct components: a diffuse and focal
brain injury. T he latter component , i.e., the focal brain injury, related to the subdural
and extradural haematomas. It is assumed the doctor intended to convey that the
haemorrhages compressed the underlying brain tissue , resulting in focal areas of
brain injury. The haemorrhage was managed conservatively. Richardson expressed
the opinion that the minor’s neuropsychological sequelae , which included cognitive,
memory, and behavioural complications, would continue to negatively and materially
affect his amenities of life for the for eseeable future. The minor’s focal brain injury
was more likely to cause head injury -related sequelae.
8. Richardson states that the minor’s post -accident pain would have been
adequately managed in the hospital . She did not elicit a history of frequen t
complaints of headaches. She state d that the minor could perform his basic and
advanced activities of daily living. The minor had reached the period of maxim um
medical improvement when Richardson assessed him.
9. The Psychiatrist's report dated 15 December 2022 noted that the minor’s tics
and balance problems had improved . His eyesight had recovered. He could hold a
pencil, and his speech had improved.
10. The Clinical Psychologist, Elspeth Burke (’Burke’) , who has a sp ecial interest
in Neuropsychology, reassessed the minor in October 2023. Her follow -up report
dated 30 October 2023 is the most recent report filed by the Plaintiff. The minor was
seven years and one month ol d when she assessed him. Burke ’s first assessment
occurred when the minor was two years and six months old. The minor has been
attending a Special Needs Adapted Program (SNAP) since the beginning of 2023.
He is given Ritalin to control his hyperactivity. The mother reported that the minor
‘had come a long way’ , ‘learnt a lot’ , and had done well. His speech improve d
dramatically since 2021. His sentence construction improved, and he was able to
communicate with his mother more effectively . He has a slur red speech and stutter .
Other people found it difficult to understand the minor at that stage . He had no
seizures but had developed tremors in his left hand. His tendency to bang his head
had subsided, but he had taken to biting his nails . The minor still had memory
problems. His hyper activity resurface d when he was off his Ritalin. The minor
displayed disinhibited behaviour at times. His attention remained poor. The mother
was aware that the minor function ed at a different level to children of his age and
accepted that a special needs school was the only alternative for him. His judgment
was inferior to that of his peers, but he occasionally surprised her. His mood was
volatile, labile and somewhat unpredictable.
11. The minor’s school report indicated that he had achieved the planned
outcomes with support in mathematics, life skills and English, his home language .
The minor had made good progress during the report term . Upon testing, Burke
found impairments in attenti on, concentration, and motor dexterity . His pencil grip
was poor. The minor had discernible difficulties with his speech . His ability to listen
and recall a story narrated to him was severely defective , even on repetition ( short -
term auditory memory ). His visuospatial and perceptual abilities yielded variable
results. The minor’s executive functioning was predominantly impaired.
12. Burke assessed the minor’s full-scale intelligence quotient at 71 , which she
interpreted to mean that the minor was cognitiv ely handicapped. This result must be
viewed in the context of the minor being the child of parents who have obtained
tertiary education , a mother who had an uneventful pregnancy , and him having a
normal infancy .
13. The Speech Therapist found mild disturbances of speech production but
marked cognitive, linguistic , and cognitive -communicative deficits . The minor had
impaired language content, word retrieval deficits, and poor verbal working memory.
The Occupational Therapist noted defective visual perception integration and motor
coordination . The Defendant -appointed Educational Psychologist concluded that the
minor presented to him in May 2023 at the age of six years and eight months with
many difficulties , and his scholastic abilities were non -existent when assessed. He
confirmed the cognitive, memory and concentration deficits exposed through the
neuropsychological evaluation.
GENERAL DAMAGES
14. The nature of injuries is that there is an acute phase of physical pain and
suffering from the time the injury occurs to the time it stabilises or disappears,
followed by chronic or ongoing sequelae. In road accident cases, awards for general
damages have introduced two new concepts, namely maximum medical
improvement and whole -person impairment, to determine whether injuries are
compensable or not. They do not affect the determination of an award for general
damages once the initial assessment is conducted but allow the appropriate expert
to identify the acute and chronic effects of accident -related injuries, especially those
to the brain and spinal cord .
15. The award of general damages is intended to compensate for three key
elements: pain and suffering , which includes psychological effects of injury, loss of
amenities of life, and disfigurement. The scar left by the surgical intervention on the
minor’s frontal scalp area appears to have been concealed by his hair growth.
Richardson noted that the minor’s physical pain experience would have been
adequately managed whilst in the hospital. Richardson suggested in her report that
the minor’s accident -related injuries had stabilised, and he had reached maximum
medical improvement when she assessed him in October 2022.
16. The evaluation of the minor’s brain injury and its sequelae must commence
from Richardson’s classification of the initial injury as severe and her opinion that the
neuropsychological sequelae may also be evident for the foreseeable future. Burke’s
findings confirm that the minor’s brain injury has impacted his neuropsychological
functioning and his neurobehavioural control .
17. The cases referred to on behalf of the Plaintiff to assist the Court make an
award under this head of damages shall be briefly considered.
18. Bonessa v Road Accident Fund 2014 (7A3) QOD 1 (ECP) involved a 13 -year-
old female who sustained a severe closed head injury , multiple rib fractures ,
haemopneumothorax , fractured thoracic spine, injury to the spinal cord and
paraplegia. She underwent surgical procedures and became wheelchair dependent
with limited ability to manage bi -manual tasks and was incontinent of urine and stool.
She suffered post-traumatic dementia and severely compromised speech, vision,
memory and executive functioning . There was also a frontal lobe injury , which
caused her to become aggressive, disinhibited and emotionally isolated. She had a
promising scholastic and vocational future before the accident occurred. The injuries
rendered her uneducable and unemployable. She was awarded R2.5 million , which
is valued at approximately R4.31 million in present -day terms.
19. Adv M van Rooyen NO obo JPM van Reenen v Road Accident Fund case no
82697/2015 , Gauteng Division, Pretoria (8 November 2017) , involved a young man
in his twenties . He suffered a severe head injury with permanent physical , cognitive
and neuropsychol ogical sequelae. He was hospitalised for a prolonged period and
underwent a range of invasive medical procedures. He suffered from hemiparesis
and was essentially wheelchair -bound , although he was able to walk for short
distances . He required ongoing care and supervision and was considered
unemployable . The Court awarded R2 .2 million , which has a present -day value of
R3.24 million.
20. Anthony v Road Accident Fund (27454 /2013) [2017] ZAGPPHC 161 (15
February 2017) involved a 22-year-old female student. She suffered a moderat e
concussive brain injury and had facial and orbital fractures . She developed
neuropsychological and neuro cognitive deficits. The neuropsychological difficulties
were subtle. She was scarred from her injuries . She str uggled at university as a
result of the sequelae of her injuries. She was awarded R 1.6 million , which has a
current -day value of R2.35 million.
21. M v Road Accident Fund (12601/2017) [2018] ZAGP JHC (18 June 2018)
concerns a 27-year-old male. He suffered a severe head injury with brain damage
and neurocognitive deficits . His GCS was 9/15 when admitted. He was left with
some weakness in his right arm and leg, which was alternatively described as slight
and then as a right hemiplegia with severe co ordination and mobility difficulties. The
Plaintiff was rendered unemployable. The Court awarded R1.9 million , which has a
present -day value of R2.7 million.
22. None of the cases submitted on behalf of the Plaintiff are comparable as they
involve older clai mants and variable brain and spinal cord injuries that are either
more or less severe than those suffered by the minor in casu . The cases relied upon
by the Defendant follow.
23. Rabie v MEC for Education, Gauteng 2013 (6A4) QOD 227 (GNP) , involved a
grade 8 schoolboy. He sustained a head injury with skull and facial fractures during a
rugby match. He was thrown into the air and landed on his head. The boy needed a
tracheostomy and craniotomy. He spent an inordinat e time in intensive care. He
subsequently managed to pass his matriculation exams and was registered for
tertiary studies. He was able to find employment after the accident . The Court
awarded R800 000, which is equivalent to R1 403 000 in current terms.
24. Ndokweni v Road Accident Fund , case number 2159/2012 ECHC , involve d an
older male with a serious diffuse brain injury , fracture of the left femur, fracture of the
anterior aspect of the C1 vertebra, fracture of the left clavicle, deep degloving
laceratio n on the back of the head and lacerations of the face. The Court awarded
R800 000, which translates to approximately R1,403,000 in 2024 terms.
25. Raupert v Road Accident Fund [2011] LNQD 23 (ECP) involved a 23 -year-old
male with a ‘very significant ’ head injury. There was extensive fracturing of the
Plaintiff’s skull with bifrontal lobe contusions involving the left frontal area . There was
also bifrontal traumatic subarachnoid haemorrhage. There was generalised brain
oedema with some comp ression of the right ventricle , causing a developing right
infratemporal haematoma . The head injury probably included diffuse axonal injury .
The Court awarded R750 000, which is equivalent to R1469 000 in current terms.
26. Fouche v Road Accident Fund (3214/ 2017) [2024] ZAFSHC 57 (11 March
2024) involved a thirteen -year-old male. The minor was catapulted off the back of a
bakkie and landed on the tarred road surface when their vehicle was rear -ended by
another car and then driven over by their vehicle. The mi nor suffered multiple
fractures and a mild concussive head injury , as well as a crush injury. The adjusted
award for inflation is R525 000.
27. Manqele obo PNT v Road Accident Fund (D6921 /2019) [2023] ZAKZDH 48
(11 September 2023) : involved a minor who was 9 years and 11 months at the time
of the accident . He sustained a right cranial fossa base of skull fracture, a right
parietal skull fracture, and a small right temporal lobe cerebral contusion . The GCS
on admission to the hospital was 3/15. The minor was hospitalised for three weeks .
The minor suffers from lifelong epilepsy, a post-traumatic brain injury, vertical gaze
paresis, and is unstable while standing. The Court awarded R1.2 million in 2023.
28. The Court has dutifully read th e provided cases but is unable to find many
similarities between those cases and the case this Court must adjudicate. Cases are
submitted to the Court to assist it in making a fair and just award for general
damages . Plaintiff’s Counsel placed great emphasis on the minor’s neurocognitive,
psychophysical , and neuropsychological deficits. They have been covered across
the expert reports. The Court was also referred to a further case.
29. In Pietersen (obo J St I) v Road Accident Fund , the injured child w as four
years and seven months old at the time of the accident.7 He sustained a significant
brain injury resulting in daily seizures and cognitive deficits, an inability to pass grade
12 in the mainstream academic environment and a vulnerable candidate in the open
labour market. Experts agreed that he ought to be placed in a school for learners
with special educational needs. His future earning capacity was compromised. He
also suffered injuries to both feet, his buttocks, right shoulder, right side of his face,
scalp and occiput and his right forearm. Repeated debridement and split skin graft
procedures were necessary, but severe disfiguring scars remained unsightly. The
court awarded R750 000 for general damages. The current award is R1 382 000 , as
per the Quantum Yearbook,
30. The Court may consider comparable cases. It should be emphasised,
however, that this process of comparison does not take the form of a meticulous
examination of awards made in other cases to fix the amount of compensation; nor
should the process be allowed so to dominate the enquiry as to become a fetter
upon the Court's general discretion in such matters. Comparable cases, when
available, should rather be used to afford some guidance, in a general way, towards
assisting the Court in arriving at an award which is not substantially out of general
accord with previous awards in broadly similar cases, regard being had to all the
factors which are considered to be relevant in the assessment of general damages.
At the same time, it may be p ermissible, in an appropriate case, to test any
assessment arrived at upon this basis by reference to the general pattern of previous
awards in cases where the injuries and their sequelae may have been either more
serious or less than those in the case und er consideration.8
31. The assessment of awards for general damages, with reference to awards
made in previous cases, is fraught with difficulty. The facts of a particular case need
to be examined as a whole, and few cases are directly comparable. They serve as a
useful guide to what other courts have considered appropriate, but they hold no
higher value than that .9
7 2012 (6A4) QOD 88 (GSJ)
8 Protea Assurance Co. Limited v Lamb 1971 (1) SA 530 (A) at 535H -536B
9 Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) pp. 325 -326
32. This Court has adjudicated a case involving a minor concurrently with this
case . In C.D.K obo C.L.K v Road Accident Fund (1809/2022) [2025] ZAW CHC 149
(27 March 2025) , the 3-year-old minor suffered a fracture line of the skull extending
from the left occipital bone to the foramen magnum. The key injury involved the
minor’s brain. She sustained brain swelling and repeated seizures. The tests
performed by the Neuropsychologists revealed extensive difficulties. Their results
confirmed much of the extensive neuropsychological symptoms reported by the
mother. The minor suffered florid symptoms of brain injury and behavioural problems
that followed a relentless progression . 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 . The tests performed by the
Neuropsychologists revealed extensive deficits that had translated into psychological
pain, suffering, and loss of amenities of life. The minor was diagnosed with post-
traumatic epilepsy and attention deficit hyperactivity disorder (A DHD ). The minor
exhibited fine and gross motor and visuomotor integration difficulties, which all
suggested that the minor experienced a more severe brain injury than the
categorisation provided by the Neurologist who coincidentally assessed the minor in
casu . The Minor o btained 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 . This Court awarded the Plaintiff R2 million in
general damages on 27 March 2025.
33. In awarding R2 million in damages, this Court considered the case of
Maribeng v Road Accident Fund ,2021 (8A4) QOD 39 (GNP), which 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 well 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 was R1 963 000.
34. The latter cases are comparable in terms of age, the nature of the injuries,
and the severity of the sequelae that followed. Few cases are alike in every respect.
The Court considers th at the primary injury , in this case, is more severe than in
C.D.K obo C.L.K v Road Accident Fund , but the sequelae are less severe . There
was a relentless progression of the sequelae , whereas there has been significant
improvement in casu . Whilst the Court is acutely aware of its role as the upper
guardian of children and its obligation to ensure their best interests, which it has
done in this case, it must also ensure that awards made are congruous with the
underlying injuries and their sequelae. The Court exe rcises its discretion and awards
the minor R2 million in general damages.
35. As alluded to, the Court granted an order by agreement that covered the
remaining claims of Plaintiff and costs , including the costs of the experts as well as
Counsel’s costs, on 25 March 2025 . The order below shall reflect the award for
general damages alone. In the premises, the following order is made.
ORDER
1. The Plaintiff is awarded R2 000 000 (R2 million) in general damages for the
minor’s accident -related injuries and their sequelae ,
2. Defendant shall pay the amount into the Plaintiff’s attorneys’ trust account
within 180 days, with interest at the prescribed rate from 14 days after the
date of this order.
3. The Defendant shall pay the costs incurred in obtaining payment o f the
amount .
4. The details of the Attorneys’ trust account are:
Bank: FNB Business
Account Holder: De Vries Shields Chiat Inc.
Branch: Portside
Account number: 6[…]
Branch Code: 210651
________________________
Bhoopchand AJ
Acting Judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e -mail on 30
March 2025
Plaintiff’s Counsel: J-H Le Roux SC
Instructed by De Vries Shields Chiat Inc
Defendant ’s attorney: C Thomas, State Attorney