SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case No: RAF 534/2022
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO
In the matter between:
J[...] L[...] D[...] Plaintiff
on behalf R[...] J[...] D[...] (MINOR)
and
ROAD ACCIDENT FUND Defendant
Heard: 21 October 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for hand -down is deemed to be
10h00 on 06 JANUARY 2025.
JUDGMENT
PETERSEN J
Introduction
[1] The action was set down on 21 October 2024 for adjudication of quantum. Merits
were previously conceded 100% in favour of the minor child, a pedestrian at the
time of the accident, who was knocked down by a motor vehicle driven by the
insured driver.
[2] The issues identified by the plaintiff for consideration include general damages,
future medical expenses and loss of earnings. Since general damages remain in
dispute between the parties, the law in that regard is trite. The assessment of
whether an injury is ‘serious’ is regulated by the RAF Regulations, promulgated in
2008 and is left for determination by the Road Accident Fund. See: RAF v
Leboko [2012] ZASCA 159 ; RAF v Duma & three similar cases 2013 (6) SA
9 (SCA); RAF v Faria 2014 (6) SA 19 (SCA). This Court is therefore precluded
from considering same at this stage.
[3] The matter consequently proceeded only on the issue of loss of earning capacity ,
which must be distinguished from loss of earnings as typified by the plaintiff.
[4] An application was moved for expert evidence of certain of the plaintiff’s witnesses
to be adduced by way of affidavit in terms of Rule 38(2) of the Uniform Rules of
Court. The application was granted and the evidence of Dr SK Mafeelane
(Orthopaedic S urgeon), Dr MP Seroto (Neurosurgeon), M s C Muhadisa (Clinical
Psychologist), Dr LK Kgwete (Educational Psychologist), Ms P Khunou -Morake
(Occupational Therapist), Ms KF Dlakavu (Industrial Psychologist) and JJC Sauer
(Actuary) was admitted on affidavit.
Factual background
[5] At the time of the accident o n 26 February 2016, the minor child, aged 5 years at
the time, was a pedestrian walking on a public road in the vicinity of M[...] Primary
School, when he was knocked down by a motor vehicle with registration number
J[...] driven by Tebogo Margaret Baloyi (‘the insured driver’).
[6] The medical reports from Modderkuil Clinic; Moses Kotane, Job Shimankana
Tabane and Dr George Mukhari Hospitals alluded to by the experts are not on file.
The following information relevant to the accident and treatment of the minor child
appears from the expe rt reports. The minor child was initially transported from the
accident scene to the Modderkuil Clinic. There are conflicting reports made to the
experts regarding his state of consciousness , although all indications are that he
was fully conscious with a Glascow Coma Scale (GCS) of 15/15.
[7] The minor child in fact recalls being struck by the insured motor vehicle as he
attempted to cross the road, with his friends calling out to him. He then recalls
being stuck under the motor vehicle and being transpo rted to the clinic. From
Modderkuil Clinic he was taken to Moses Kotane Hospital, then transferred to Job
Shimankana Tabane where he was admitted for about a week, until being
transferred to Dr George Mukhari Hospital for surgery. He was, however,
discharged since the surgery could not be performed due the lapse of time. It is
not clear what surgery was to be performed.
[8] The minor child , according to he hospital records from Moses Kotane Hospital
records that the minor child sustained a head injury (ha ematoma on the head);
swelling and fracture on the left temporal region; and was ultimately diagnosed
with a head injury. Other injuries noted in hospital reports are said to include a left
eye injury and general body lacerations, which w ere treated conser vatively,
resulting in him being discharged with medication only.
resulting in him being discharged with medication only.
[9] For purposes of assessment of the loss of earning capacity, the expert opinion s of
the clinical, educational and industrial psychologists, and to a lesser degree the
occupational therapist against the expert opinion of the neurosurgeon merits
scrutiny since those postulations have an impact on the actuarial calculations. It is
prudent to consider these expert reports sequentially based on the dates on which
the minor child was assessed by the respective experts. Nothing turns on the
expert opinion of the orthopaedic surgeon, who noted a negligible Whole Person
Impairment (WPI) of 2%.
The Neurosurgeon
[10] Dr Seroto assessed the minor child on 22 November 2022. He inexplicably refers
to loss of consciousness which is not borne out by the medical evidence or the
evidence of the minor child himself. On this misconstrued basis he diagnos ed the
minor child with having sustained a mild traumatic brain injury, which he opines is
evidenced by a GCS of 15/15, loss of consciousness of which there is no evidence
and direct impact on the head.
[11] Dr Seroto further noted post concussive syndrome demonstrative from headaches,
irritability, memory problems and dizziness. The minor child’s prognosis for
developing post traumatic epilepsy is 1.5%, and based on the post -concussion
headaches he has an 80% chance of recovery in 2 -3 years and 20% permanency
post-injury, and new or worsening neurocognitive and psychosocial sequelae. The
total WPI is 22%.
The Clinical Psychologist
[12] Ms Muhadisa assessed the minor child on 2 February 2023 and provided her
report on 3 March 2023. The minor child at that time was 12 years and 2 months
old and in Grade 7 at school. This was nearly 7 years post -accident. The
assessment was targeted at establishing the possible effects of the accident on
the minor child’s scholastic, social and other important areas of his daily
functioning. In addition to the neuropsychological assessment of the minor child,
Ms Muhadisa considered collateral information from his parents; the RAF1 and 4
forms; hospital records; and the expert reports of Drs Seroto and Mafeelane of 22
November 2022 and 2 February 2023 respectively.
[13] Ms Muhadisa concluded that the minor child’s profile indicated neurocognitive
deficits in various areas. These suggest that he may not be able to function in the
school context at the same potential he would have pre -accident. She, however,
defers to the educational psychologist for final comment on this aspect. In relation
to his psychological functioning she notes that his profile indicates behavioural,
emotional and personality changes as well as anxiety and PTSD symptomatology
that appear to impact his functioning optimally in his environment. This too may
impact his schooling but this is also deferred to the educational psychologist.
The Occupational Therapist
[14] Ms Khunou, the occupatio nal therapist, assessed the minor child on 2 February
2023, the same day he was assessed by Dr Mafeelane. She notes contrary to Dr
Seroto, that the minor child di d not lose consciousness, either during or after the
accident.
[15] Ms Khunou concluded that her assessment revealed that the minor child would be
able to manage or cope with medium and heavy duties in the open labour market
in future, given that the fact that there were no significant orthopaedic injuries. He
would find it difficu lt to complete Grade 12 if he is not given support at home and
school. She otherwise defers to the opinion of the industrial psychologist on the
future realistic earning capacity of the minor child.
The Educational Psychologist
[16] Dr Kgwete assessed the minor child on the same day as the Industrial
Psychologist, being 9 May 2023. He opines that the intellectual assessment
indicates that the minor child’s intellectual functioning falls within the average
range, with his verbal and pe rformance IQ scores both being average. On the
educational assessment the minor child’s reading and spelling are poor. He
performed below his age and intellectual level on reading speed test. His
performance in reading was not consistent with his average verbal intelligence and
individual scale for Zulu-speaking learners.
individual scale for Zulu-speaking learners.
[17] Dr Kgwete notes that the accident occurred when the minor child was 5 years and
3 months old ding Grade R at M[...] Primary School in the North West Province,
and that he was in Gra de 7 at C[...] Primary School in Limpopo, at the time of
assessment in 2023. School reports indicated that the minor child was consistently
performing below the Grade average in most of his subjects though he has no
repeated a Grade pre- and post-accident. Notably, the minor child was in Grade R
at the time of the accident and repeating a Grade pre -accident reasonably could
not be a factor.
[18] Dr Kgwete opines in conclusion that the minor child’s pre -morbid cognitive
functioning was average. Pre-morbid the minor child had the potential to achieve a
Grade 12 pass and to proceed to obtain a bachelor’s degree level qualification.
[19] Post-morbid he notes the minor child’s reported head inju ry, post -concussive
syndrome, memory impairment, emotional lability with short temperedness, signs
of PTSD, neurocognitive deficits in some areas of cognitive functioning, and
attention and concentration challenges. He does note that the minor child’s scho ol
reports reflects that he is progressing satisfactorily after the accident, but this was
not reflected in the scholastic assessments conducted. He opines that post -morbid
the minor child’s scholastic performance is likely to drop as the amount and
complexity of the work increases in the higher Grades due to the sequelae of the
accident, and particularly the noted attention and concentration difficulties. In the
post-morbid scenario, he opines that the minor child will likely pass Grade 10 and
proceed to obtain a vocational training certificate on NQF level 4 or 5.
The Industrial Psychologist
[20] Ms Dlakavu assessed the minor child on 9 May 202 3 and submitted her report on
5 June 2023. Relying in the main on the other expert reports and specifically that
of the educational psychologist . Based on the postulation by the educational
psychologist that the minor child in the pre -accident scenario would have gone on
psychologist that the minor child in the pre -accident scenario would have gone on
to pass Grade 12 and obtain a bachelor’s level qualification which would have
enabled him to enrol at a tertiary institution as per his career aspirations, she
opines two scenarios.
[21] In the first scenario (pre -accident), she opines that the minor child would have
progressed within a mainstream schooling environment to attain a Grade 12 (NQF
4) and thereafter pursued a tertiary qualification, either a Diploma or Degree as per
his career choice and vocational interests and entered the open labour market at
the higher semi-skilled level (Paterson B1/B2) and thereafter progressed to senior
supervisory roles at Paterson C3/C4 by the age of 45 years in the open labour
market.
[22] In the second scenario (pre-accident), she opines that should the minor child attain
Grade 12 (NQF 4) bu t not pursue tertiary education, he would enter the labour
market at an unskilled level and with training and development progressed to a
team leader level at Paterson B3 and later to a supervisor at Paterson C1 level at
age 45.
[23] He would retire in bo th scenarios at normal retirement age (60 -65) depending on
the policy of the employer.
[24] In the post -accident scenario, Ms Dlakavu, again with much emphasis on the
expert opinion of the educational psychologist, opines that the minor child is likely
to complete only Grade 10 and then to remain unemployed upon leaving school.
The Actuary
[25] The actuary, Mr Johan Sauer of Johan Sauer Actuaries and Consultant premised
on the postulations of the industrial psychologist, sets out the basis of his
calculation dated 7 June 2023 as follows . He moves from the following
assumptions. The minor child was born on 24 November 2010; pre -morbid he
would have retired at age 62.5 (being the average of ages 60 and 65); with the
date of accident being 26 February 2016 and the calculation date being 1 July
2023.
[26] He accordingly calculates the loss of earnings as follows:
Pre-morbid: Grade 12; Post-morbid: Unemployed
Future earnings
Minus contingencies
20%/0%
Future loss of earnings
Total loss of earnings 4 488 273
Minus effect of RAF cap (given the above contingency values apply 0
Total loss of earnings after RAF cap 4 488 273
Discussion
[27] The minor child was in Garde 7, aged 5 years and 3 months at the time of the
accident. Collateral information suggests that he had never been in an accident
before and was generally of good health, having reached all milestones
favourably.
[28] Save for the contradictory indications th at the minor child lost consciousness after
the accident, all other assessments are demonstrative of the fact that he has
suffered cognitive impairment which has impacted his scholastic performance
which is described as consistently below the grade average.
[29] Expert opinion must be founded on logical reasoning to satisfy this Court that it
can safely be accepted when gauged against the onus on the plaintiff, to satisfy
the Court of same on a balance of probabilities. I am satisfied that in the main the
plaintiff has satisfied the onus on a balance of probabilities, subject to reservations
on some of the postulations. These reservations are in the main on the
postulations of the industrial psychologist which informs the actuarial calculations.
[30] The latter statement is further informed by the fact that here we are dealing with
a minor child whose prospects in life remain greatly uncertain and has been
Pre-Morbid Post-Morbid Loss (Difference)
5 610 341 0
1 122 068 0
4 488 273 0 4 488 273
determined with a measure of speculation. In Southern Insurance Association
Ltd v Bailey NO 1984(1) SA 98 AD at 113G, the following is stated in this regard:
“Any enquiry into damages for loss of earning capacity is to its nature speculative,
because it involves a prediction as to the future without the benefit of crystal balls,
soothsayers, augers or oracles. All that the court can do is to make an estimate,
which is often a very rough estimate, of the present value of a loss.”
[31] The uncertainty inherent in matters of this nature, faced with a minor child, b rings
to the fore the making or allowance of suitable contingencies, which remains within
the discretion of this Court, relevant to the peculiar facts of the matter.
[32] Considering the pre and post -morbid career paths postulated by the industrial
psychologist, I find it difficult to accept that, with the minor child having been in
Grade R at the precipice of his schooling, and performing on an average basis with
his peers, and with the a cademic history of his parents that it could be said
emphatically that he would have achieved a Grade 12 with a bachelor’s pass and
then proceeded on to a bachelor’s degree. The statistical data for such an
assumption is simply not there. This speculation obviously impacts the
determination of his uninjured future earnings. Absent an established scholastic
record, considering the minor child was in Grade R at the time of the accident, the
degree of speculation on his pre -accident scholastic ability versus h is post -
accident ability which renders him unemployable , unfortunately does not avail the
plaintiff and does not assist the Court.
[33] The actuary, Johan Sauer Actuaries and Consultants applied a 20% contingency
deduction on the minor's pre-morbid (uninjured future earnings).
[34] The peculiar facts of this matter are such that a contingency deduction of 40% on
the uninjured future earnings should be made to address what is speculative
the uninjured future earnings should be made to address what is speculative
hypothesis on the minor child’s ability to complete Grade 12 post -accident and to
pursue tertiary studies ; and the speculative hypothesis on the child’s ability pre -
accident with no statistical data for such assumption.
Conclusion
[35] In applying the aforesaid contingenc y of 40%, the minor child’s possible uninjured
future loss would be an amount of R3 366 204.60.
Order
[36] The following order is made:
1. The defendant shall pay the plaintiff the amount of R3 366 204.60 (three million
three hundred and sixty -six thousand two hundred and four rand and sixty
cents) in respect of the claim for loss of earning capacity.
2. The issue of general damages is postponed sine die.
3. The defendant shall pay the plaintiff’s taxed or agreed party and party costs of
the action on the High Court Scale.
4. The plaintiff shall, in the vent that the parties ate not in agreement on the costs
as above, serve a notice of taxation on the defendant’s attorneys and shall
allow the defendant 180 court days to make payment of the taxed costs, from
date of allocatur to make payment of the taxed costs.
5. Should payment not be effected timeously, the plaintiff shall be entitled to
recover interest at the rate of 11,75% per annum on the taxed or agreed costs
from the date of allocatur to date of final payment.
6. The costs shall include the costs of counsel on scale B, inclusive of the day fee
for court attendance on 21 October 2024, which costs shall include costs of
preparation, necessary consultations, travelling and accommodation expenses.
___________________
A H PETERSEN
JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Plaintiff : Adv. H Ramukhesa
Instructed by : ME Tlou Attorneys Inc
c/o M E Tlou Attorneys Inc
No 43, cnr Baden Powell and Visser Streets
GOLFVIEW
Tel: 018 011 0036/7/8/9
Reference: DAN1/0001/RAF
Email: desiya@tlouattorneys.co.za
For the Defendant : Mr D Mohale
Instructed by : THE STATE ATTORNEY
1st Floor East Gallery
MegaCity Shopping Complex
cnr Sekame Rd and Dr James Moroka Drive
MMABATHO
Tel: 066 303 4054
Reference: 0132/23/R2
Email: douglasm@raf.co.za