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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 61432 /2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 2 Jube 2025
SIGNATURE: JANSE VAN NIEUWENHUIZEN J
In the matter between:
M[...] L[...] M[...] obo
K[...] M[...] N[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
___________________________________________________________________
JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] K[...] M[...] N[...] (“the minor”) , being represented herein by her mother, the
plaintiff, was involved in a motor vehicle accident on 22 April 2018. The minor
was a pedestrian when a motor vehicle collided with her at approximately
18:30 along Thamakge Street, Mamelodi East, Pretoria. Mr Grobler SC,
counsel for the plaintiff , submitted that the negligence of the insured driver
was the sole cause of the accident. I agree.
[2] It is evident from the evidence admitted at the hearing of the matter that the
minor suffered injuries as a result of the collision. In the premises , the plaintiff
claims payment of future medical and hospital expenses and of the minor’s
loss of future earnings / earning capacity.
Future medical and hospital expenses
[3] According to t he evidence contained in the me dico-legal reports filed in
respect of the sequalae of the injuries the minor suffered due to the collusion,
the plaintiff will incur expenses in respect of future medical treatment of the
minor. I n the result, the plaintiff is entitled to a statutory undertaking in terms
of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996.
Loss of earnings / earning ability
[4] The medico legal reports of respectively, Dr Martin, an orthopaedic surgeon
and N Arm, an occupational therapist, confirm that the minor’s orthopaedic
injuries will not result in a loss of earnings / earning ability.
[5] The loss of earnings / earning ability is based on the finding by Dr Wynand -
Ndlovu, a neurologist, that the minor suffered a mild traumatic brain injury.
The diagnosis is based on “reported clouding of consciousness and forehead
abrasions.”
[6] The “reported clouding of consciousness” is based on the version the plaintiff
provided to Dr Wynand -Ndlovu. According to the plaintiff she arrived at
Mamelodi Regional Hospital a few hours after the accident and the minor did
not immediately recognize her; she only recognised her an hour or so later.
[7] In the clinical notes of Mamelodi Regional Hospital , there is, however, no
indication of a clouding of consciousness . To the contrary, the notes reveal
the following:
7.1 on arrival at the hospital at 18:20 the minor was “awake and
orientated ” and;
7.2 at 20:20 “Pupils 3mm dilated and reactive; fully conscious;”
[8] The plaintiff’s version that supported the finding of “clouding of
consciousness” is, furthermore, contradict ed by the version she gave to Rita
du Plessis, a counselling and neuropsychologist, to wit:
“2.2…She went to the hospital and her partner was already with K[...]. She did
not speak to her daughter and was unable to recall her daughter’s mental
state. Ms M[...] admitted that her fear stopped her from engaging her daughter
at the time.”
[9] In the result, t he diagnosis of a mild traumatic brain injury can, on the facts
before court, only be based on the forehead abrasions.
[10] Nina du Plessis, an educational psychologist, opined that the mild traumatic
brain injury will in future have an impact on the minor’s scholastic and
academic performance. According to Nina Du Plessis, t he minor would prior
to the accident have obtained a Grade 12 National Senior Certificate with a
Diploma/Higher Certificate Qualification level, should her family have been
able to afford additional tertiary studies.
[11] Post-accident the minor’s educability is described as follows:
“Should K[...] change school, and the standard of education is considered
higher and therefore more challenging, it would most probably be better for
her to rather attend a remedial school. Depending on how well she responds
to this type of learning support system, she may still be able to complete her
Grade 12 National Senior Certificate, especially when considering that some
remedial schools offer higher levels of learning support and learners are able
to choose from, a wider list (i.e. academic and practical types) of subjects
when making their subject choices for grades 10, 11 and 12. Furthermore, it is
likely, that should K[...] decide to continue her studies after school, she would
be better suited for a TVET Certificate Qualification.”
[12] The aforesaid finding is somewhat at odds with the minor’s academic
performance. Nina du Plessis noted the following in her report in respect of
the minor’s academic performance:
“Grade 2 (2018):
Based on the available school report, it appears that there was an
improvement in K[...]’s academic performance, in comparison to Grade 1,
where she mostly obtained above average performance levels. Her teacher
specifically commended her for the Mathematics subject. K[...] was
successfully promoted to Grade 3.
It should be noted that the accident in question, took place on 22 April
2018, at the end of the first term.
Grade 3 (Terms 1 -3)
From the available school report, additional academic improvement was
observed across all of her subject areas, in comparison to her Grade 2
performance levels. Her teacher further commented that it was an excellent
report.”
[13] Having had regard to the minor’s academic performance, Nina du Plessis
stated that it does not appear that the minor is presenting with any specific
learning difficulty, nor does there appear to be a pre -existing learning
difficulty.
[14] Nina du Plessis subjected the minor to various assessments and reported as
follows on the minor’s estimated pre-morbid cognitive functioning:
“8.1.1.1 When considering K[...]’s current level of cognitive ability, it is
likely that on a pre -morbid level, she most likely presented with
an average cognitive ability. This assumption being based on
Lezak’s opinion as well as taking into consideration K[...]’s
developmental history, familial e ducational history and the
negative impact that even a mild traumatic brain injury can have
on current cognitive performance levels, should this be
confirmed as the case” (own emphasis)
[15] In respect of the minor’s cognitive functioning post -accident, Nina du
Plessis indicated that the minor’s cognitive ability has been indicated
as considerably lower in comparison to the suggested pre-accident
cognitive ability .
[16] It is clear that the findings based on the assessments are not borne out
by the facts before court.
[17] The difference between the assessments and the scholastic
performance is attributed by Nina du Plessis to:
17.1 the fact that the scholastic assessment tools used in the
assessment are standardized for learners learning in English as
their home language; and
17.2 the possible substandard level of education being provided at
the minor’s current educational institution.
[18] Rita du Plessis also subjected the minor to assessments and reported , inter
alia, as follows :
“9.37 …Cognisance has been taken of the opinion of Ms N du Plessis, the
educational psychologist on focal damage lying at the root of the
scholastic difficulties. In this regard comments by the neurosurgeon on
the possibility of focal damage should be obtained. There is no
evidence of focal neurological signs after the accident. I recommend
advanced optometric eye examinations and the opinion of a specialist
on Irien Syndrome for comments on the findings of the educational
psychologist and the nexus between the accident and the learning
difficulties identified in her assessment. I agree with Ms Du Plessis that
K[...]’s scholastic performances have remained stable.”
and
“10.8 Her performance in the psychometric test did not concur with her
marks in the available school reports. Poor working memory could be
partially influenced by a traumatic brain injury. Poor working memory
ability probably underlies the poor learning skills revealed when
exposed to ro te verbal information. She revealed learning difficulties
and poor English proficiency which one cannot ascribe to the accident
under discussion. Her school marks do not reflect the difficulties she
revealed in the psychometric testing. ”
[19] In summary , Rita du Plessis opined that the minor does not function according
to her pre -accident level and that this is at least to some extent due to the
accident.
[20] Based on the aforesaid expert opinions , N Kotze, an ind ustrial psychologist,
suggested a probable career path for the minor pre -and post -accident. Having
regard to the probable career path of the minor, J Sauer, an actuary
calculated the minor’s loss in respect of two scenarios. In Scenario 1, the
minor would have obtained uninjured and injured post matric a certificate and
in Scenario 2, the minor would post matric have obtained a diploma uninjured
and in the injured scenario a certificate.
[21] Having applied contingencies, scenario 1 amounts to a loss of R 1 926 219
and scenario 2 a loss of R 3 16 3 397. Mr Grobler submitted that the average
of the two calculations should be used, which results in a loss of R 2 544 808,
00.
Discussion
[22] I am mindful that the opinions of both Nina du Plessis and Rita du Plessis are
based on their respective expertise in their respective medical disciplines. I
furthermore accept that the minor has the learning difficulties identified during
the various assessments.
[23] I am, however, not satisfied that the plaintiff has on a balance of probabilities
proved that the learning difficulties are as a result of the injuries suffered
during the accident.
[24] The minor attended the same educational facility pre -and -post accident. I f the
injuries sustained in the accident had an impact on the minor’s academic
performance, one would have expected that her scholastic performance
would have d eteriorate post -accident. The facts indicate the contrary, the
minor’s performance ha s improved after the accident.
[25] In the result and h aving had regard to the expert evidence and the proven
facts, I am unable to find on a balance of probabilities that the injuries suffered
by the minor in the accident will result in a loss of earning / earning ability .
ORDER
In the premises, I grant an order in terms of the order attached hereto as “X”.
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE HEARD :
11 March 2025
DATE DE LIVERED:
2 June 2025
APPEARANCES
Counsel for the Plaintiff : Adv Grobler SC
Instructed by: Wehmeyers Attorneys
Defendant: Not represented.