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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2020/27135
Date of hearing: Considered in chambers
Date delivered: 28 July 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE: 28/7/25
SIGNATURE
In the application between:
P[...] N[...] obo
K[...] N[...] N[...] Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
__________________________________________________________
JUDGMENT
SWANEPOEL J:
[1] This matter first came before me on 14 June 2024. Having considered the
papers, I indicated to the plaintiff’s counsel that I was not satisfied with the report of
the educational psychologist, inasmuch as the plaintiff’s school reports were lacking,
and consequently I postponed the matter sine die for a supplementary report. The
report was filed on 7 May 2025, and I have been asked to consider the matter in
chambers without further argument from the plaintiff’s counsel.
[2] The plaintiff claims damages on behalf of her son, K, who is now almost 11
years old, pursuant to an accident that occurred on 30 July 2017. At that time K was
two years and eleven months old. The defendant is the Road Accident Fund. It has
acknowledged liability for 100% of the damages suffered by K. The matter is thus
before me for consideration of the quantum of K’s damages for loss of income. As
has become usual in many of these matters, the defendant has not participated in
the trial.
[3] The accident happened at approximately 06h40 in Carolina, when K’s father
lost control of the car in which they were travelling . It overturned and in the process
K suffered a head injury. There are allegations that K suffered a leg injury, or
perhaps injuries to both legs, but those allegations are contradicted by the X -ray
reports and the hospital records. In any event, there is no averment made that K’s
income earning capacity has in any manner been affected by a leg injury, and it is
only the head injury that is relevant to the matter before me.
[4] K lost consciousness during the accident, and upon admission to hospital he
was reported to be drowsy with a GCS of 12/15. Some two hours later his GCS had
recovered to 15/15. A CT -scan showed that he had suffered a right parietal bone
displaced fracture, and a Grade 1 subarachnoid haemorrhage. He was treated
conservatively and discharged five days later.
[5] Subsequently, K suffers from headaches that are treated with analgesics. He
has emotional difficulties and has undergone a personality change. He suffers from a
measure of short-term memory loss and enuresis.
[6] The educational psychologist, Dr. Segabutle, reports that before the accident
K had attained all of his developmental milestones within normal ranges. Post -
morbid, K is short-tempered, angry and he cries easily. The clinical psychologist, Ms.
Mqhayi, reports that K suffers from impaired complex attention and mental speed.
Mqhayi, reports that K suffers from impaired complex attention and mental speed.
He demonstrates moderate neurocognitive impairments. He is unlikely to recover
any further.
[7] K’s latest school reports show that he performs adequately, and in some
subjects he performs above his grade level. However, I accept that as K promotes to
higher grades, his cognitive impairment will affect his scholastic performance, and he
will progressively struggle more and more. Currently, K is assisted by a tutor in those
subjects with which he struggles.
[8] The fact that K was a toddler when the accident occurred makes is difficult to
predict his possible career path. Both his parents attained a Grade 12 qualification
and both achieved tertiary qualifications . Dr Matlala, the initial educational
psychologist, pointed out that the family and home environment is the primary factor
in shaping a person’s potential. She opined that c hildren generally achieve higher
qualifications than their parent s. Given that K was a normal child pre -accident, and
had achieved all of his developmental milestones, she postulated that he would have
passed Grade 12 and would have achieved an NQF 7 qualification. Given his
cognitive deficits, she postulated that K would now only achieve an NQF 6
qualification.
[9] Having considered the report of the industrial psychologist the actuary
considered two uninjured scenarios. The first is that K would have attained an NQF 7
qualification, and would have entered the job market at age 23 at an income of R
298 000 per annum, increasing to age 45 at level D1/D2 ( basic median) in the sum
of R 814 000 per annum , remaining constant thereafter until retirement at age 65.
The second scenario is essentially the same, save that it is postulated that K would
have attained a ceiling of R 1 194 000 per annum at level D1/D2 (Package median).
[10] In the injured scenario, the actuary calculated that K would now commence
employment at age 23 having achieved an NQF 6 level qualification, at an income of
R 241 500 which w ould remain constant until retirement at age 65. The plaintiff
R 241 500 which w ould remain constant until retirement at age 65. The plaintiff
justifies the lack of growth of the post-accident income on the grounds that K would
be a compromised and vulnerable employee who would most likely be overlooked
for promotion as a result of his cognitive difficulties.
[11] The plaintiff argues that K’s pre-morbid income, based on Scenario 2 , would
have amounted to R 10 389 885, without justifying why that scenario is preferable to
scenario 1 , which predicts an income of R 7 987 343 . Now that the accident has
occurred, K’s income is predicted to be R 3 658 873.
[12] I have some difficult y with the plaintiff’s case. Firstly, although I have often
heard the opinion of experts that in general children perform better academically
than their parents, it is exceedingly difficult to predict the possible academic
progression of a toddler. There are many unpredictable factors that could possibly
have an influence on K’s academic and career progression. The scenarios
postulated by the experts depend upon K progressing academicall y, completing
Grade 12, being able to obtain funding for tertiary education , etc, and many other
exigencies of life.
[13] It has struck me in the past that th e experts’ glib assertion that the child will
achieve higher qualifications than the parents ignores the challenges faced by young
people in our society in general, but more especially with the education system.
[14] My reservations as to the correctness of this theory were confirmed by an
article published recently in the De Rebus magazine.1 The authors demonstrate that
84.7% of learners do not achieve a qualification higher than NQF 4. That means that
only a relatively small percentage of learners achieve higher than NQF level 4, and
only 5.9% achieve a degree qualification. The question in each case should be: what
differentiates this particular child from the average , and why do the experts say that
this particular child was likely to have achieved a degree?
[15] In this case the experts have provided no factual basis to support the ir
postulation. However, there is nothing from the defendant to gainsay their opinion. It
is my view that one should factor in the fact that generally not than many learners
achieve a degree, and I propose to deal with this aspect by the application of a
higher contingency deduction in respect of the postulated future uninjured earnings.
higher contingency deduction in respect of the postulated future uninjured earnings.
[16] Furthermore, there is no factual justification for the application of scenario 2
instead of scenario 1. Therefore, I intend to calculate the loss on an average
1 De Rebus (July 2025): Medico -legal educational predictions leave much to be desired, Prof. R
Tabane, Mr. A Baron, Prof. H Lern, Mr D Berndt
between the two scenarios . Finally, the plaintiff has suggested that a 40%
contingency deduction be applied to the injured income. In light of the fact that the
actuary has already postulated that K will not progress in his career at all, and would
reach maximum income at age 23, I find the application of a 40% contingency
deduction on the injured income to be excessive.
[17] Consequently, I calculate the plaintiff’s loss as follows:
UNINJURED INJURED LOSS
FUTURE LOSS 9 188 614 3 658 873
LESS
CONTINGENCIES
25%:
2 297 153.50
20%
731 774.60
NET 6 891 460.50 2 927 098.40
TOTAL 3 964 362.10
[18] I make the following order:
[18.1] The defendant shall pay the plaintiff R 3 964 362.10 (three
million nine hundred and sixty four thousand three hundred and sixty
two rand, ten cents) in respect of the plaintiff’s claim for loss of
earnings.
[18.2] The aforesaid amount shall be paid to the following account:
MHP MALESA ATTORNEYS
FIRST NATIONAL BANK ACCOUNT NO: 6[...], branch code 2[...]
RAF reference: R[...]
[18.3] If the defendant fails to pay the aforesaid amount within 180
days of this order interest will run on the outstanding amount at the rate
of 10.5% per annum from date of judgment to date of payment.
[18.4] The capital shall be protected by way of a trust , for the benefit
of the minor child K, and the plaintiff’s attorney is ordered to apply to
this court within three months for an order establishing the trust.
[18.5] Pending the establishment of the trust, the plaintiff’s attorneys,
Messrs MHP Malesa Attorneys, shall invest the capital in an interest
bearing account in terms of section 86 (4) of the Legal Practice Act,
2014, and shall retain such monies in the account until the trust referred
to above has been established, save that the plaintiff’s attorney may
make reasonable payments to the plaintiff for medical care of the minor
child K.
[18.6] The defendant shall pay all costs associated with the
establishment and administration of the trust, including, but not limited
to the setting of security by the trustee and the costs of the application
to establish the trust.
[18.7] The defendant shall deliver an undertaking in terms of section
17 (4) (a) of the Road Accident Fund Act, 1996, to the plaintiff within 14
(fourteen) days wherein the defendant undertakes to pay to the plaintiff
100% of the cost of K’s future accommodation in a hospital or a nursing
home or treatment or rendering of a service or supplying of goods to the
plaintiff, in respect of the injuries sustained by the minor child K in the
motor vehicle accident that occurred on 30 July 2017 , after the costs
have been incurred and upon proof thereof.
[18.8] The defendant shall pay the plaintiff’s agreed or taxed part and
party costs on Scale B, which costs shall include the qualifying and
reservation costs of the plaintiff’s expert witnesses, as well as the costs
of the preparation of medico legal reports.
[18.9] The defendant shall pay the costs within 180 days from the date
upon which the accounts are taxed by the taxing master, or agreed upon
by the parties (“the due date”) , failing which the costs shall attract
interest at the rate of 10.5% per annum calculated from the due date until
date of payment.
[18.10] The issue of general damages is postponed sine die.
[18.11] There is no contingency fee agreement.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. F Sathekge
Instructed by: MP Malesa Attorneys
Heard: In chambers
Judgment on: 28 July 2025