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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 No: 58648/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS
JUDGES: NO
(3) REVISED: YES/NO
DATE 13/08/2025
SIGNATURE
In the matter between:
ADV CLAIRE CAWOOD NO OBO A[...] S[...] A[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
REASONS FOR ORDER
____________________________________________________________________
FRANCIS-SUBBIAH J
[1] These are reasons for order dated 17 February 2025 regarding an application
for default judgement in terms of rule 31 of the Uniform Rules of Court for
general damages and legal costs.
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[2] The patient, a pedestrian was hit by an unidentified motor vehicle on 1 August
2018. The merits were conceded by the defendant, and it was agreed that the
patient qualified for general damages. At the time of the accident the patient
was a minor and in grade 4. He suffered a brain injury of moderate severity, as
opined by Dr Domingo, a neurosurgeon. He also suffered a right humerus
fracture. His arm was immobilized in a plaster cast. He was discharged from
hospital three days later on 4 August 2018.
[3] An undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56
of 1996 (“the Act”) for future medical costs and treatments were given . He
presents a risk for late post -traumatic seizures at 5 -10%. His longevity has not
been affected by the accident.
[4] Prior to the accident the minor presented with developmental and
neuropsychological delays. He struggled with speech and language difficulties.
His cognitive difficulties included concentration, reading and writing. He had to
repeat a grade prior to the accident. However , he was able to understand and
follow instructions and participated in class and showed some progress at
school. It was intended that he would attend a special school for skills.
[5] His teacher, Ms S[...], reported a noticeable deterioration in his function after
the accident. His behavior changed . He was easily agitated and aggressive. It
was reported that since he was a busy child in the early years of childhood, he
was prescribed the drug, Ritalin for ADHD which he may continue to use. Ms
S[...] reported that h e is still good with his hands and likes making things and
drawing.
[6] It was reported that t he minor has no physical and neurological disability. His
loss of amenities of life are said to come from his behavioral problems resulting
in him interacting poorly with his peers. His level of consciousness after the
accident was recorded on t he Glasgow Coma Scale as 15/15. This is a tool
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used by health practitioners that indicates a person's level of consciousness
after a traumatic brain injury and 13 -15 TBI indicates a mild brain injury. A
moderate brain injury is usually recorded as 9-12 TBI. Although it is noted that
the severity of an injury can change over time. The minors’s condition has
stabilized, and he remains symptomatic. His cranial nerve examination was
normal. There were no focal motor or sensory deficits.
[7] Counsel for the plaintiff referred to Van Rooyen No v RAF 2022 (8A4) QOD
156 (GNP) where an amount of R 2 200 000-00 was awarded to a farm manager of 29
years of age who suffered severe head injury resulting in severe physical disability,
mostly wheel- chair bound, requiring care giver assistance, cognitive , behavioral,
memory, and speech d ifficulties. In the matter of WV v RAF 2019 (7A4) QOD 113
(FB) in the Bloemfontein High Court, general damages was awarded in the amount of
R 2 100 000-00. The patient had suffered traumatic brain injury with a skull fracture,
pons bleed, mandible fracture, right lower leg, tibia and fibula fractures. He was
transferred to ICU and ventilated. He was in a coma for one month and his GCS was
4/15. He had various other severe modalities with pain and discomfort.
[8] The caselaw presented by Counsel involve injuries that are distinguishable
from the those suffered by the minor in the present matter , as they involve older
claimants and variable brain and spinal cord injuries . Although each case is unique
and presents with specific sequelae, comparatives from the presented caselaw failed
to assist in quantifying general damages in the present matter.
[9] In turn I considered the following matter s with more relevance to the present
sequalae. In the case of B.S.P obo H.N.K v Road Accident Fund (16623/2018)
[2025] ZAWCHC 156 (31 March 2025) R1 963 000-00 was awarded in damages .
This Court considered the case of Maribeng v Road Accident Fund , 2021 (8A4)
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
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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.
[10] Further, the case of Nawe v Road Accident Fund 2021 (8A4) QOD 46 (GNP),
finds relevance. Whilst the plaintiff’s brain injury is classified as mild, severity
was highlighted. The plaintiff suffers pain in several areas as described and will
suffer such pain in all likelihood for the rest of his life. His scarring on several
places is very severe and can only partially be addressed by plastic surgery. He
suffers and will continue to suffer depression with a poor prognosis to
treatment. He has permanent severe neuropsychological sequelae which will
impair his ability to further his education. The court awarded R 950 000,00.
[11] In Fouche v Road Accident Fund (3214/2017) [2024] ZAFSHC 57 (11 March
2024) this matter involved a thirteen -year-old minor who fell off the back of a
bakkie and landed on the tar road. He suffered multiple fractures and a mild
concussive head injury, as well as a crush injury. The adjusted award with
inflation was R525 000.
[12] In Pietersen (obo J St I) v Road Accident Fund , 2012 (6A4) QOD 88 (GSJ)
the injured minor was four years and seven months old at the time of the
accident. 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. The experts
agreed in this matter too 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
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.
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[13] In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at 325-
332, it was emphasised that t he 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. Therefore, in
the circumstances in consideration of all the facts of the present matter and
previous awards made in similar matters it is my considered view that an award
of R1 200 000,00 is a fair and reasonable compensation.
Legal Costs
[14] On the question of costs, the plaintiff contents that the court disallowed the
costs claimed under prayer 15 -18. However, these costs were not disallowed.
These costs are subject to the discretion of the taxing master . In all cases it is
not the function of the court to declare such costs necessary in a court order
and so a court should not usurp the function of the taxing master by making
such an order. However, the court is open to giving any indication to the taxing
master it considers may be useful. Transnet Ltd t/a Metrorail and Another v
Witter 2008 (6) SA 549 (SCA) at 560-1.
[15] The claim for costs under prayer 14 adequately provide for the defendant
paying the party and party costs of the plaintiff subject to the discretion of the
taxing master with counsel’s fees on scale B as provided in section 69 of
Uniform Rules of Court.
[16] A party is generally entitled to recover the reasonable and necessary cost
resulting from litigation. In this instance, the taxing master must decide whether
the evidence would have been necessary and material. These include the
reports, consultations of experts and costs of counsel for the professional and
legal work done. On the other hand where it is clear that a litigant cannot
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recover those costs from the opposing side, by bringing an unreasonable
number of experts to establish the same point cannot be reimbursed for those
expenses. It is trite that t hese considerations are not the function of the court
but that of the taxingmaster.
[17] Rule 70(2) of the Uniform Rules of Court allows the taxingmaster to call for and
direct any party to produce books, documents, papers or accounts that are
necessary to enable her to properly determine any matter arising upon such
taxation. The taxingmaster is entitled to demand proof for services rendered
before allowing a fee as claimed. Payen Components South Africa Ltd v
Bovic Gaskets CC 1999 (2) SA 409 (W) . Therefore the costs claimed under
prayer 15-18 are for determination by the taxingmaster and the court does not
usurp the function of the taxing master by making such an order.
R. FRANCIS-SUBBIAH
Judge of the Gauteng High court: Pretoria
Date of hearing and order: 20 February 2025
Date of reasons: 13 August 2025
APPEARANCES
For the Applicant: Adv A Laubscher
Instructed by: Adendorff Attorneys Inc.
For the Respondent: L Lebakeng (State Attorney)
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Delivered: This judgment is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading to Caselines. The date
and time of hand-down is deemed to be 16H00 on 13 August 2025