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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 6520/22
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 9 JUNE 2025
SIGNATURE
In the matter between:
D[...] W[...] T[...]
Obo L[...] T[...] Applicant
and
ROAD ACCIDENT FUND Respond ent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 09 June 2025 .
Summary: A claim for loss of earning capacity. The onus to prove that a
claimant has lost capacity to earn lies with the claimant. A Court must be
satisfied that a claimant has indeed lost capacity to earn. A Court is not bound
by opinions of experts who baselessly opine that less serious injuries have
affected the earning capacity of a claimant. The plaintiff has failed to d ischarge
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the onus that the injured minor child lost her earning capacity and income.
Held: (1 ) The claim for loss of earning capacity and income is dismissed.
JUDGMENT
MOSHOANA, J
Introduction
[1] In an action where the loss of earning capacity and earnings is claimed, the role
of a Court is not only relegated to the application of contingencies to a claim . A
Court must be satisfied on a balance of probabilities that the claimant has lost
earning capacity as in a patrimonial loss. In Road Accident Fund v Kerridge
(Kerridge )1, the SCA had the following to say:
“Indeed, a physical disability which impacts on the capacity to
earn an income does not, on its own, reduce the patrimony of an
injured. There must be proof that the reduction in the income earning
capacity will result in actual loss of income.
[2] The above legal position was already stated in Rudman v Road Accident Fund
(Rudman )2. It remains the onus of the claimant to prove on a balance of
probabilities that the physical disability firstly impacts on his or her capacity to
earn and secondly that an actual loss shall follow due to the impact on earni ng
capacity. Cases involving minor children who have no proven record of earning
capacity are difficult to deal with. This become s a true situation of holding a
crystal ball . Speculation is the order of the day all round. In this specific
instance, this Court must speculate what twenty years down the line would hold
for a minor chil d who sustained minor bruises on h er face.
[3] Involved herein is a delictual action for damages brought by Ms D[...] W[...] T[...]
(“Plaintiff”) on behalf of her child Ms L[...] T[...] (“Injured minor child”). Whilst
1 2019 (2) SA 233 (SCA) para 25.
2 2003 (2) SA 234 (SCA).
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aged 2 years and 3 months, the injured minor child was involved in a motor
vehicle accident. It was , on 22 March 2017 that the injured minor child, who
was there and then a pedestrian , hit by a motor vehicle with registration letters
and numbers B […].
Injuries sustained by the injured minor child
[4] Pertinent to the present action, and relevant to the issue to be determined by
this Court , the hospital records furnished by Thusong District Hospital recorded
the following: “minor bruises on the face (cheek)” as injuries sustained by the
injured minor child in the motor vehicle collision in question. The key question
to be determined by this Court is whether the injured minor child had su stained
a head injury in the collision or not. According to Dr Thobejane, a Neurosurgeon
& Pain Interventionist, who as sessed the injured minor child on 2 June 2022,
five years after the accident , he opined that the injured minor child suffered
Traumatic head injury. Medically, a traumatic head injury also known as a
traumatic brain injury is a damage to the brain caused by an external force,
such as a blow to the head. Regard being had to the recorded injuries , it is
difficult for this Court to accept the opinion of Dr Thobejane. Minor bruises to
the face are generally not considered to be a traumatic head injuries. Dr
Thobejane also opined that based on those minor bruises, the injured minor
child suffered a severe concussion with neurocognitive deficits.
[5] A severe concussion involves a loss of consciousness lasting longer than five
minutes. Nowhere in the availed hospital records was it recorded that the
injured minor child had lost consciousness. The availed clinical records are
unhelpful with regard to the GCS of the minor child on admission. According to
the accident report, the injuries to the injured minor child were recorded as
being slight. Generally bruises on the face do not lead to neurocognitive
deficits.
[6] It is important to note that the Clinical Psychologist (CP) held a clinical interview
with the plaintiff on 02 June 2022. It was the plaintiff who informed the CP that
the injured minor child lost consciousness . Howe ver, this fact is not supported
by any objective evidence. There is no evidence that the plaintiff was present at
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the time of the collision. The CP stated in her report that the medical records
noted head injury, right earlobe injury. Those reported injuries are not apparent
from the medical records availed to this Court. The CP placed reliance on the
report of Dr Thobejane who stated that the injured minor child sustained a
severe concussion with neurocognitive deficits. This Court has already
expressed doubt on the veracity of this statement . In any injuries, the hospital
records of the first treating hospital are the most reliable source with regard to
the injuries sus tained .
[7] This Court finds it difficult to accept the opinions of the CP and Dr Thobejane
with regard to the alleged head injury. This Court pointed out to counsel for the
plaintiff that a minor bruise on the face is incapable of resulting in the
neurocognitive deficits alleged in the reports. Counsel for the pla intiff conceded
to the propos ition that and injury to any body part attached to a head does not
equate head injury . This is a concession well made. It accords with a medical
definition of a head injury.
The alleged neurocognitive deficits
[8] Dr Thobejane was informed by the plaintiff that the injured minor child has
persistent headaches, memory issues, anger spells and poor school
performance issues . A barrage of incidents were reported to the CP by the
plaintiff, which incidents are on paper associated with or are known symptoms
of neurocognitive deficit flowing from a head injury . At the time when th ose
incidents were reported, the injured minor child was 5 years old. As at the
hearing of this action, the injured minor child was 8 years of a ge. There was no
evidence presented that the injured minor child as at the trial date still show
those reported symptoms. In 2022, the CP had recommended that the injured
minor child should attend psychotherapy to assist her in coping with her post -
morbid functioning and her emotional symptoms. Also , the CP stated that
Cognitive Rehabilitation Therapy (CRT) targeted interventions can help improve
memory, attention, and executive functioning, aiding her in managing academic
tasks more effectively. Th ose reco mmendations simply suggest s that, even if
this Court were to accept that indeed the injured minor child presented with
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those neurocognitive deficits, those deficits were not of a permanent nature and
could be managed.
[9] No evidence was led as to whether those interventions were made and had
failed to improve the alleged neurocognitive deficits. This Court finds it difficult
to understand the poor school performance alleged by Dr Thobejane and the
CP. Both of them assessed the injured minor child when she was in grade
three. On the available evidence, in 2020 the injured minor child progressed
from grade R to grade 1. From 2021 – 2023, she was enrolled for grades 1 , 2
and 3 respectively and had passed all those grades. Therefore , on the available
objective evidence , it cannot be accepted that the injured minor child is
performing poorly at school. There is simply no evidence for that.
The Educational Psychologist (EP) assessed the injured minor child on 10
August 2023. At that time the injured minor child was in grade 3. At that time
she had passed all her previous grade s. The available school reports indicates
that the injured minor child passed all the terms in grade 4. First terms she
obtained 52% in home language studies; 57% in English, 52% in Mathematics;
57% in Natural Science and Technology; 58% in Social Sciences; and 52 % in
Life Skills. In term two she achieved higher percentag es as well as in third and
fourth term respectively. For reasons that are not altogether clear the EP in her
report does not reveal the percentages achieved by the injured minor child from
grades R up to and including grade 3 . Regard being had to the results of grade
4, it is difficult to accept a notion that she is performing poorly . The results of
term one grade 5 showed some poor marks in certain subjects. At the time of
this judgment, this Court was not placed in possession of term two results in
grade 5. The plaintiff has not presented any other reports that show an
academic decline.
[10] In light of the current objective scholastic performance of the injured minor
child, this Court fails to comprehen d the following statement by the EP:
“L[...] displayed scholastic deficits are impacting on her classroom
performance. Her deficits will be more evident as she continues to
higher grades where higher order of learning skills are placed on the
child’s independence. It is improbable that she will be able to cope
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with the demands of mainstream school system and pass grade 12
with a Bachelor pass as it was the case with her pre -morbidly.”
[11] It is unclear to this Court as to what will make the injured minor child not to
cope with the demands of main stream school system . The EP says nothing
about the effect of the recommended interventions made by the CP. It remains
unclear to this Court as to whether such interventions will make the injured
minor child to cope with the demands of mainstream school system or not . The
opinion expressed by the EP in her report is not useful to this Court and is
illogical and difficult to comprehend . She stated the following:
“I.Q. deteriorated . L[...] is post -morbidly functioning in the average
range intellectually. Medical records stated that the claimant sustained
bruises on the face and reportedly has right ear discharging purulent
material and also painful. It is therefore, probable that she suffered a
degree of IQ deterioration . According to Dr E.K Thobejane, she
sustained severe concussion .
[12] From the above statement, it is unclear to this Court as to whether the injured
minor child’s I.Q deteriorated from what to what and why. Further , it is unclear
whether the deterioration of the IQ is only probable because D r Thobejane
mentioned that severe concussion has been sustained. The CP recommended
certain interventions. The EP suggests that the injured minor child’s cognitive
and scholastic deficits as revealed by the tests are deemed permanent and
there are no remedial interventions that will effec t significant change
academically and allow her to benefit as she would have pre -morbidly. This is
not in sync with what the CP recommended. For that reason this Court is
unable to accept the opinion of the EP. It is one that is baseless and illogical.
[13] It is difficult for this Court to understand this postulation. Pre-morbidly , the
injured minor child was still a toddler. That being so , how would the EP have
been able to assess her academic ability then ? In her report she stated the
following:
“Predicting the actual level to which L[...] would have progressed if she
had not been injured is not easy as she was 2 years and 8 months
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at the time the accident occurred, and had not started schooling .
However, the effect of her injury has probably stunted her
cognitive potential and subsequently her vocational prospects.
[14] This Court agrees with the proposition that the prediction is not easy one to
make. However, the highly speculative conclusion that the effect of the injury
probably stunted her cognitive potential is very difficult to comprehend. Which
injury is she referring to? The minor bruises on the face? This Court is unable
to accept this proposition. The conclusion that since the tests reveal that the
injured minor child’s I.Q score is average range of intelligence, and such is a
good indication that she had sound intellectual ability pre -morbidly is incapable
of justification. It is unsound and illogical for this Court. It is this illogical and
unsound postulation that drove her to the following unacceptable postulation:
“Educationally : L[...]’s pre -morbid estimate of above average
intellectual ability is consistent with functioning at a level where she
could have progressed through the mainstream school system,
matriculated with a Bachelor pass and proceeded to obtain a university
degree.
[15] This postulation is predicated on nothingness. It is way too speculative. In the
family of the injured minor child , there is no objective evidence that anyone in it
had achieved that feat. None of her siblings had come close to that
achievement. This Court is unable to accept this postulation. Regard being had
to the minor injuries suffered by the injured minor child, this Court is unable to
accept that the earning capacity of the injured minor child was affected. If , as
postulated by the EP , the injured mi nor child will not cope with the demands of
mainstream school system and pass grade 12 with a Bachelor, that would not
have been on account of the minor bruises she sustained on her face. In her
family, her mother achieved grade 12 and her father achieved grade 8. There is
no collateral evidence to support that her mother or her one sibling who passed
grade 12 did so with good marks. If she pass with low marks, it would not be as
a result of this minor injuries. There will be no causal connection between th e
injuries a nd the alleged damages.
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Conclusions
[16] In summary, this Court is far from being convinced that the injuries sustained by
the injured minor child would lead to neurocognitive deficits alleged . On the
available medical evidence, the injured minor child did not sustain severe
concussive head injury with neurocognitive deficits during the motor vehicle
accident. The reported neurocognitive symptoms , five years later , may not be
linked to bruises on the face with no scarring. On the probabilities , the bruises
on the face healed with no complications. Accordingly, the plaintiff has failed to
discharge her onus of proof. She must fail. The injuries did not affect the minor
child’s earning capacity and she will not suffer a patrimonial loss as a result of
those injuries. The evidence of the experts are rejected in so far as they
suggest that bruises on the face has caused the reported neurocognitive
deficits. This Court fully agrees with the Court in P.E.M obo P.C.M v Road
Accident Fund (PEM )3 when it said:
“[24] … 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 who is still developing their ability
to think .”
[17] The conclusions of the Occupational Therapist (OT) and Industrial Psychologist
(IP) are not useful to this Court because they are premised on the illogical and
rejected conclusions reached by the CP and Dr Thobejane. The calculations by
the Actuary must equally fall away because they are premised on the wrong
conclusion that the injured minor child has lost her capacity to earn. She, in my
considered view , did not.
[18] On account of all the above reasons, I make the following order :
Order
1. The claim for loss of earning capacity and income is dismissed .
GN MOSHOANA
3 (4545/2019) [2025] ZAMPMBHC 49 (6 June 2025)
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JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Plaintiff: Mr Mchasa
Instructed by: K S Dinaka Attorneys , Pretoria.
For the Defendant: No appearance
Date of Hearing 06 June 2025
Date of judgment : 09 June 2025