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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA

CASE NO :4545 /2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE : 06 June 2025
SIGNATURE

In the matter between:

P[...] E[...] M[...] obo
P[...] C[...] M[...] PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand -down is deemed
to be 10:00 on 06 June 2025.


JUDGMENT

Moleleki AJ

[1] The plaintiff claims damages in her representative capacity as mother and
natural guardian of her minor child . On 8 July 2019 , along the R40 Road, Casteel,
Acornhoek in Bushbuckridge, Mpumalanga, the minor child was involved in an
accident . The minor child, who at the time was a pedestrian, was knocked down by a
motor vehicle (insured vehicle) whilst crossing the road.

[2] The following was agreed upon :

2.1 The defendant is liable for 100% of the plaintiff’s agreed or proven
damages in accord ance with the offer and acceptance dated 16 September
2022 .
2.2 The defendant shall furnish an undertaking for future medical expenses
in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996.
2.3 The general damages be postponed sine die .
2.4 The plaintiff’s expert reports to be admitted into evidence by way of
affidavit.

[3] The expert reports filed on behalf of the plaintiff and admitted as evidence are
of the following experts: The Neurosurgeon, Dr Mkhonza ; the Clinical Psychologist,
Dr Modiba; the Educational Therapist , Dr Monyela; the Occupational Therapist , Dr
Molemi; the Industrial Psychologist , Dr Baloyi as well as actuarial calculations by
Tsebo Actuaries.

[4] The only dispute between the parties that still requires de termination is the
issue of future loss of income/income capacity.

Background

[5] The minor child was born on 21 June 2013. On 8 July 2019 he was involved
in a pedestrian -vehicle accident whilst crossing the road. He was taken by a private
vehicle to Mapulaneng hospital. He was 6 years old and in grade 1 at the time of the
accident . The hospital records indicate that he was fully conscious and alert upon his
admission at the hospital. His initial Glasgow Coma Scale (GCS) was 15/15 . The
injuries noted were abrasions on the forehead, nose and right shoulder. The injuries
were described as superficial abrasions on the face, dorsal, wrist, upper lip and right
infraorbital region. X -rays were conducted and no fractures were noted. He was
treated and discharged the same day. He is currently 1 1 years old.

[6] From a Neurological view, Dr Mkhonza indicated that the minor child lacks
concentration and has short -term memory problems . He experiences post -
concussive headaches , neurocognitive deficits and personality changes . He is
aggressive and fights with his peers . Dr Mkhonza’ s opinion is that the child suffered
mild-traumatic brain injury (concussion) during the accident .

[7] The Clinical Psychologist, Dr Modiba, conducted a psychological assessment ,
the objective of which was to establish the nature, if any, of cognitive, psychological ,
personality/behavioural changes , and the possible impact of the accident, if any, on
the child’s psychological , cognitive and /or personality/behavioural functioning. The
child’s intellectual functioning was assessed post-accident , and it places him within
the average intellectual functioning range. His adaptive behaviour and social maturity
level were found to be age appropriate to his chronological age. His long-term
memory seemed adequate , evidenced by his ability to recall remote events , and his
adequate processing speed . He has intact planning, organisation, problem solving
and multitasking abilities . The clinical psychologist noted moderate behavioural
related problems . He meets the diagnostic criteria for attention deficit hyperactivity
disorder (ADHD) . He also is afraid of the accident reoccurring when he is a
pedestrian and has mild anxiety .

[8] The educational psychologist, Dr Monyela assessed the minor child to
establish his pre - and post -accident educational potential . In 2018 he passed grade
R with an average of 6 7%, with the grade average of 69%. The 2019 pre-accident
term 1 report showed that he passed with an average of 65%. Post-accident , he
passed grade 2 with an average of 63% . He repeated grade 3 , having obtained an
average of 47%. Thereafter, he passed grade 3 with an average of 66%. The total
average pass in grade 4 was 66%.

[9] The Clinical Psychologist acknowledged that the child was coping in his
academic performance post -accident b ut noted that his performance may drop as he
moves up the grades where more critical thinking and independent work is expected
in line with more abstract and increased workload . The clinical psychologist opined
that had the accident not occurred, the minor child would most likely have achieved
an NQF level 7 qualification . Now that the accident has occurred, he is most likely to
achieve an NQF level 6 qualificatio n.

[10] The Occupational Therapist , Dr Molemi indicated that there were no signs of
physical disability noted. He was able to transfer himself between different positions
with no limitations . He was able to perform all mobility/agility skills. From the
information received from the mother and the child, there was no report of cognitive
limitations. During the evaluation he was able to follow global instructions given to
him with no limitation s. He used the right hand to write with no limitations. He would
benefit from occupational therapy with regards to cognitive or perceptual problems
and behavioural modifications.

[11] The minor child continues to experience headaches , cognitive deficits,
psychological and personality dysfunction. He will benefit from intervention from the
multidisciplinary team . His future occupation performance will be directly linked to the
level of education he manages to achieve . He should be able to perform skilled type s
of occupations . Should the headaches not be resolved, they may have a negative
effect on his performance. His performance in the labour market will only be limited if
the headaches are not resolved.

[12] According to the industrial psychologist, Dr Baloyi, the child should be
compensated for medical expenses, as well as pain and suffering . The injuries
affected his physical, psychological and cognitive capa city. He will not be able to
attain his pre-accident postulated degree qualification , but rather a diploma. His
qualification will determine his level of entry into the open labour market , which will
now be lower than his postulated pre -accident level of entry into the labour market.
His career development and his income will also be determined by his qualification.

Application of the Law

[13] It is trite that the plaintiff must prove the extent of her loss and damages on a
balance of probabilities. Regarding loss of earning/earning capacity, the plaintiff is
required to provide and prove the factual basis that allows for an actuarial
calculatio n, which the court would use as the basis to determine the plaintiff’s loss.

[14] The court in Dippenaar v Shield Insurance Co Ltd1 stated the following:

“In our law, under the lex Aquilia, the defendant must make good the
difference between the value of the plaintiff ’s estate after the commission of
the delict and the value it would have had if the delict had not been
committed. The capacity to earn money is considered to be part of a person ’s
estate and the loss or impairment of that capacity constitutes a loss, if such
loss diminishes the estate. ”

[15] However, the court in Mlotshwa v Road Accident Fund2 stated the following :

“… a judicial officer should then be required to grope at large in order to come
to the assistance of a litigant, especially one whose case has been presented
in such a vague way. It seems to me that the judicial officer must be placed in
such a position that he is not called upon to make an arbitrary or merely
speculative assessment, a state of affairs which would re sult in injustice to
one of the parties. ”

[16] It is accepted that the court must calculate the monetary value of all that the
plaintiff would have earned had the accident not occurred, on the one hand. On the
other, it must calculate the monetary value of all that the plaintiff would be able to
earn and bring to his or her estate after the injury. The two hypothetical totals would

1 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917A -B.
2 Mlotshwa v Road Accident Fund [2017] ZAGPPHC 109 para 19.
be compared. The shortfall, if any, is the extent of the patrimonial loss. However,
evidence may establish that the injury has h ad no appreciable effect on the earning
capacity of the plaintiff. In that event, the damage under this head will be nil.3

[17] The plaintiff relies on the evidence of expert witnesses. The approach to be
adopted by the courts when dealing with expert evidenc e was succinctly set out in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another4 as follows:

“…what is required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded on logical re asoning .”

[18] It is a long -established principle that the primary purpose of experts is to
assist the court in matters that the court does not possess the necessary knowledge
to decide the issue. These are people who possesses above average skill and
experience .5 Before a court can assess the value of an opinion it must know the
facts on which it was based. If the expert has been misinformed, about the facts, or
has taken irrelevant facts into consideration or has omitted to consider relevant ones
the opinion is likely to be valueless .6

[19] As previously stated, the plaintiff relies on the evidence of the various experts.
The Educational Psychologist , Dr Monyela assessed the minor child on 20 June
2023 , the minor was ten years old and in grade 4. Nothing was placed before the
court in respect of his performance in grade 5. The purpose of his assessment was
to determine the minor child’s intellectual and cognitive functioning, emotional status
and academi c potential. Dr Monyela also had to establish the extent to which the
minor child had been personally compromised due to the injuries sustained in the
accident. The report was compiled from the information obtained from, among
others, the minor child’s mot her (the plaintiff), medico -legal reports as well as school
reports.


3 Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) para 6.
4 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) par a 36.
5 Semela v RAF [2021] ZAFSHC 209 par a 9.
6 Twine and Another v Naidoo and Another [2017] ZAGPJHC 288 para 18 .
[20] According to Dr Monyela, pre -accident, the minor child passed grade R with
an average of 67%. The year thereafter, he passed term 1 of 2019 with an average
of 65%. She opined that the m inor child was probably of an average intelligence pre -
morbidly.

[21] Post-accident and based on the school reports , the minor child repeated
grade 3 with an average of 47%. On his second attempt in 2022 he passed. In 2023
when he was in grade 4 the final year report reflected that he obtained the following
results: 84% in Natural Science and Technology; 75% in Life Ski lls; 63% in Social
Science; 61% in Sepedi Home Language; 59% in English First Additional Language ;
and 52% in Mathematics. He passed grade 4 with an average of 66%.

[22] The overall scholastic assessment by Dr Monyela revealed that the minor
child performed wi thin an adequate level in English reading and spelling, considering
the important role English as a subject , plays in his learning of all the other subjects
which are taught in English. His overall performance in Mathematics was within
moderate level and needs additional learning support. The result of the ISS B
intelligence test showed that he fell within the average range of intellectual
functioning. An MRI of the brain was performed on 28 September 2023 , and the
result thereof was that it was within normal limits

[23] Dr Monyela stated that h e sustained a head injury at a vulnerable age of
development , when he was 6 years old. She went on to state as follows:

“Although his school report showed that he (sic) is coping in his academic
performance, it is foreseen that his performance will drop as he moves up the
grades where more critical thinking and independent work is expected in line
with more abstract and increased workload due to the sequelae of the said
accident .”

[24] With the above statement, the court was left to speculate as to the reason for
the foreseen drop in performance. It remains unknown whether this foreseen drop in
academic performance would be due to the fact that his brain would develop slower
than that of his uninjured peers , thus leading to lowered performance compared to
his peers. If that were the case, the report would have mentioned it. Therefore, I
exclude that as a possibility. What may not be ignored is that higher grades typically
introduce more complex and abstract material which may be challenging to grasp by
any learner wh o is still developing their ability to think.

[25] Dr Monyela conducted a subtest which measures the ability to reason
numerically and to do mental processing. This test also relates to abstract thought
and mental alertness. The conclusion was that h e possess es adequate basic
computations in Mathematics. A memory test to measure his ability to push irrelevant
information aside and complete the task at hand was also conducted . He had
adequate functioning in this regard. The link between the accident and the for eseen
drop in scholastic performance remains unexplained.

[26] According to Dr Monyela, had the accident not occurred, the minor child
would most probably have been able to complete grade 12 with a degree
qualification (NQF Level 7). Now that the accident has occurred, he would most
probably pass grade 12 with admission for a diploma qualificatio n (NQF Level 6).

[27] The Occupational Therapist , on the other hand, indicated that there were no
signs of physical disability noted and that the minor was able to perform all
mobility/agility skills. This should be looked into against the backdrop of the injuries
sustained at the time of the collision, which were abrasion s on forehead, nose and
right shoulder. For the continued headaches , cognitive deficits, psychological and
personality dysfunction, the experts stated that the minor would benefit from
intervention from a multidisciplinary team. His future occupation is th erefore, directly
linked to the level of education he would manage to achieve. The Occupational
Therapist opined that the minor child should be able to perform skilled type s of
occupations.

[28] Dr Baloyi, the Industrial Psychologist opined that the minor chi ld will not be
able to attain his pre -accident postulated degree qualification.

[29] It is an established principle that the plaintiff bears the onus to prove on a
balance of probabilities that the injuries he sustained have reduced his earning
capacity, which will result in actual loss.7 The court in Road Accident Fund v
Kerridge said the following:8

“Indeed, a physical disability which impacts on the capacity to earn an income
does not, on its own, reduce the patrimony of an injured person. There must
be proof that the reduction in the income earning capacity will result in actual
loss of income .”

That is, there must be proof that the disability gives rise to patrimonial loss. This of
course is dependent on the nature of the work that the plaintiff had done prior to the
accident or would have done had the accident not occurred .

[30] I have considered all the expert reports and compared the minor child’ s
scholastic performance pre - and post -accident. It is no doubt that the minor child
remains within the average intellectual functioning capacity. His pre - and post -
accident average percentage remains consistent. There was no deterioration that
was established as a result of the accid ent. He will continue to benefit from attending
mainstream school. He was able to use the right hand to write with no limitations.

[31] With regards to cognitive or perceptual problems and behavioural
modifications, the minor child would benefit from occupational therapy. The
Neurosurgeon indicated that the minor had post -concussive headaches and
neurocognitive deficits, that is, lack of concentration and short -term memory
problems. No neurosurgical op eration was anticipated regarding post -concussion
symptoms. However, psychotherapy by a Clinical Psychologist is recommended for
the post -concussive symptoms. It is worth mentioning that the Neurosurgeon
consulted with the minor child on 27 August 2022 . There was no follow -up, almost
three years later.

[32] The Clinical Psychologist acknowledged that the minor child was coping in his
academic performance post -accident. What is striking is that the Clinical

7 See Rudman v Road Accident Fund 2003 (2) SA 234 (SCA); Road Accident Fund v Kerridge 2019
(2) SA 233 (SCA).
8 Road Accident Fund v Kerridge 2019 (2) SA 233 (SCA) para 25.
Psychologist consulted with the minor child on 27 August 2022 as well. The Clinical
Psychologist conducted memory and attention assessment s. The digit span forward
and backwards assessment was utilized to assess the mi nor child’ s attention and
working memory . The shift from one -digit span to another requires cognitive flexibility
and attention. The minor child was able to correctly repeat 03 digits forward and 02
digits backwards, suggestive of inadequate attention and working memory. He also
presented with below average verbal short -term memory. However, h is long -term
memory seemed adequate evidenced by his ability to recall remote events , and he
had adequate processing speed. He has intact planning, organization, problem
solving and multi -tasking abilities.

[33] The Clinical Psychologist further notes moderate behavioural related
problems. The subjective complaints brought forward by the mother of th e minor
child were that he experiences persistent headaches at least once a month, he is
forgetful when given instructions even in respect of his schoolwork. He was reported
to be naughty both at home and at school. He is aggressive towards other children.
The mother reported to the Clinical Psychologist that the minor repeated grade 3
twice. However, this is not correct when looking at the school reports and what the
Educational Psychologist stated. The Cattell, a fair psychometric test , was used to
test the minor child’ s intelligence quotient. The result placed him within the average
intellectual functioning range.

[34] The minor child’s psychological functioning was assessed using P aediatric
Symptoms Checklist -17 (PSC -17), which is a tool designed to assess presence of
emotional and behavioural problems among children aged 4 years through to 16
years. The score he received was suggestive of mild ADHD. Symptoms of
aggressive behaviour were also found to exist. The Disruptive Behavioural Disorder
(DBD) scale was also used to assess symptoms of disruptive behaviour . The minor
child meets the criteria of ADHD.

[35] The Clinical Psychologist found the presence of personality and behavioural
alteration, namely, moderate to severe irritability, moderate aggressive behaviour
and mild ADHD. Although it has already been indicated that these could be resolved
by multidisciplinary intervention, there has been no explanation what the link is, if
any, between ADHD and the accident. It is clear from the report that ADHD could
result in inattention, lack of focus and behavioural difficulties. Once again, the court
is left to speculate whether this could have been a pre -morbid deficit as it was not
excluded as such.

[36] For the management of the ADHD and the aggressive behaviour , the Clinical
Psychologist deferred to the Psychiatrist. There was no report by the Psychiatrist. It
does not, therefore , seem like the minor child has received assessment nor therapy
by the Psychiatrist since August 2022 after he was assessed by the Clinical
Psychologist. In respect of the management of headaches, deferral was made to the
Neurologist. No such report was made available.

[37] Throughout the proceedings, in respect of loss of earning/ earning capacity , I
was guided by the expert evidence on the issues that fall within their expertise. It is
however of great importance that the value of their expert opinion should be able to
be tested. It ultim ately remains the decision of the court and, although the court
would pay high regard to the opinion of the expert, the court must, by considering all
the evidence and circumstances in the particular case, still decide whether the expert
opinion is correct and reliable .9

[38] A person is entitled to be compensated to the extent that their patrimony has
been diminished as a consequence of the delict. Based on the analysis of the reports
and evidence as a whole, I am not in agreement that the minor child would not be
able to atta in his pre -accident postulated qualification.

[39] It is my considered view that the minor child’s earning/ earning capacity does
not appear to have been affected. I am of the view that the minor child has recovered
well in the circumstances. He is in a posit ion to live a normal life and he remains in
mainstream schooling. He is employable and will be able to work until retirement
performing skilled type s of occupations. I am unable to reconcile the aforesaid with
the Occupational Therapist’s opinion that the minor child has been rendered a
vulnerable and unequal competitor in the open labour market compared to his peers,

9 S v Thomas 2016 (4) NR 1154 (HC) ; [2016] NAHCMD 320 as quoted in Kriel NO obo Minor Child v
Road Accident Fund [2024] ZAGPJ HC 852 para 116.
when she has indicated that he was able to perform all mobility and agility skills
without any complaints after completion of all the tasks she had given to the minor.

[40] The well -established position in our law is that courts need to be mindful of
the current situation of the plaintiff and exercise a measu re of common sense and
judicious discretion in avoiding an award that would amount to a windfall to which the
plaintiff would not be entitled. The onus is on the plaintiff to prove the loss.

[41] The actuarial calculation is premised upon the information provided by the
Industrial Psychologist to the effect that the minor child will not be able to attain his
pre-accident postulated degree . The Industrial Psychologist’s instruction s to the
Actuary are premised on the information furnished by the Educational Psychologist,
which opinion is contrary to the opinion of the Clinical Psychologist who assessed
the minor child’ s intelligence quotient, the result of which placed him within the
average intellectual functioning range, which was the case even pre -morbid. The
Industrial Psychologist’s instruction is similarly contrary to that of the Occupational
Therapist who indicated that there were no signs of physical disability noted and that
the minor was able to perform all mobility/agility skills and would be able to perform
skilled work. The mere fact that he experiences some degree of residual pain does
not translate into the conclusion that he will not reach his pre-morbid earnings level.

[42] The defendant should not be prejudiced merely because it did not furnish its
own expert reports. There were obvious factual inconsistencies in the evidence of
the Educational Psychologist. Her conclusion that the minor child’s scholastic
potential has be en affected is not supported by objective evidence, school reports
and there is no basis for going against what is contained in the school reports. The
Grade 5 school report was also not made available to provide a detailed scholastic
history, more so that the minor child is now in higher grades than where he was
when he was involved in the accident.

[43] Regard being had to the evidence presented before me , I am unable to
conclude that the minor child’ s scholastic potential has been affected. In the result,
the plaintiff has failed to prove damages for future loss of earning and earning
capacity.

[44] There is no reason to deviate from the general principle that costs follow the
resul t.

Order

[45] In the result , I make the following order:

1 The defendant is liable for 100% of the plaintiff’s proven damages
pertaining to the collision that occurred on 8 July 2019.
2 The plaintiff’s claim for loss of earnings is dismissed.
3 The defendant is ordered to furnish the plaintiff with an undertaking as
envisaged in section 17(4)(a) of the Road Accident Fund Act 56 of 1996, in
respect of the costs of the future accommodation of the minor child in a
hospital or nursing home or treatment of or renderin g of a service or supplying
of goods to him arising out of the injuries sustained by him in the motor
vehicle collision which occurred on 8 July 2019, after such costs have been
incurred and upon proof thereof.
4 The g eneral damages are postponed sine die .
5 The plaintiff is ordered to pay the costs of suit.


________________________
M.R MOLELEKI AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION , MBOMBELA


Appearances

For the Plaintiff : Mr S Mbhalati
Ngomana & Associates Attorneys
2nd Floor, Office 24A
25 Samora Machel Street
Mbombela

For the Defendant : Ms T B Malope
The State Attorney
3rd Floor, Admin Block, West Wing
R104 Samora Machel Drive
Mbombela

Matter heard on: 22 April 2025
Judgment delivered on: 06 June 2025