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: 24796 / 2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE: 26 August 2025
SIGNATURE
In the matter between:
In the matter between:
ADV Y ISAACS NO obo S[...] W[...] Plaintiff
And
ROAD ACCIDENT FUND Defendant
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 email and by uploading it to the electronic
file of this matter on Case Lines. The date for hand-down is deemed to be
the 26 August 2025
JUDGMENT
BOTSI-THULARE AJ
Introduction
[1] This is a delictual claim for damages resulting from injuries sustained by S[...]
W[...] (the plaintiff), a minor female who was born on 4 April 2010. The plaintiff
was injured as a result of a pedestrian vehicle accident in which she was a
pedestrian. The claim is brought before this court by Advocate Yvette Isaacs as
the duly appointed curator ad litem for the plaintiff. Accordingly, any referenc e
to the plaintiff in this judgment should be understood to also include Advocate
Yvette Isaacs as the duly appointed curator ad litem for the plaintiff.
[2] Negligence have become settled between parties and the matter is before this
court on the aspect of quantum only. In this regard, it is worth noting that the
issue of merits was settled 100% in favour of the plaintiff.
[3] This court is therefore required to determine quantum in relation to general
damages and past and future loss of earnings . The plaintiff also seeks a section
17(4)(a) undertaking for his future hospital and medical expenses in terms of his
agreed and/or proven damages subject to the apportionment.
Factual background
[4] On 29 January 2019 the plaintiff was injured in a pedestrian vehicle accident.
As a result of the accident, the plaintiff sustained serious bodily injuries
consisting of:
a. Traumatic head injuries with fractures and severe brain injuries, resulting
in significant residual cognitive, cognitive -communicative and
behavioural problems, and post-traumatic seizures.
b. Major neurocognitive disorder secondary to a traumatic brain injury.
c. Symptoms of post-traumatic stress disorder.
d. WPI = 47%.
[5] The plaintiff and the Road Accident Fund (the defendant) appointed experts
whose reports have been submitted to this court as expert evidence. Below is
the summary of each of the expert reports.
Dr M Pillay (Neurologist) and Dr Z Domingo (Neurosurgeon)
[6] Drs Pillay and Domingo provided a joint expert report in wh ich they opined that
based on the Glasgow coma score (GCS) and prolonged period of
posttraumatic amnesia, the plaintiff has sustained a severe traumatic brain
injury. Further, that CT scan confirmed the presence of a diffuse brain injury
with haemorrhagic contusions in addition to subarachnoid and subdural
haemorrhages.
[7] Drs Pillay and Domingo stated that the plaintiff has been left with significant
cognitive, cognitive -communicative and behavioural deficits that have been
confirmed on formal neuropsychological assessment. According to Dr s Pillay
and Domingo, the reported and confirmed deficits are in keeping with the
nature of the brain injury sustained.
[8] They opined that they defer to the neuropsychologists regarding the extent and
severity of the residual deficits. They further opined that, because of the deficits
she has been placed in a special needs school. In this regard, Dr s Pillay and
Domingo stated that they defer to the educational psychologists regarding the
need for special needs education.
[9] Drs Pillay and Domingo stated that t he structural brain injury and early post -
traumatic seizures places her at an increased risk of developing late post -
traumatic seizures. They further stated that the accident has had a negative
impact on her future employability and, in this regard, deferred to the industrial
psychologists regarding the plaintiff’s employability in the open labour market.
[10] Drs Pillay and Domingo opined that the plaintiff’s injury can be considered to be
serious and she will continue to suffer a permanent and long -term impairment
in respect of her work and personal life.
Dr R De Witt and Dr NL Nkwanyana (Neuropsychologists)
[11] Drs De Witt and Nkwanyana opined that they agree that the plaintiff has
sustained a severe brain injury which is clear from the following medical
analysis:
a. initial GCS 5/15 and decorticate position;
b. CT brain scan showed a left skull fracture, significant intra-cranial injury,
and global oedema;
c. intubation and placement of ICP and Licox monitors were necessary;
d. she had seizures while in hospital;
e. her recovery was slow and her GCS remained depressed for 6+
months; and
f. she presented w ith hallucinations and prominent cognitive
communicative difficulties during her hospital admission.
[12] Drs De Witt and Nkwanyana opined that the plaintiff is unable to give a reliable
and accurate account of herself. Further, her sister, A [...] W[...], provid ed
adequate and consistent collateral to both experts regarding the severe
difficulties the plaintiff presents with, as set out in their respective reports.
[13] Drs De Witt and Nkwanyana opined that the applicant remains entirely
dependent on care and supervi sion in all aspects of daily living, including
maintaining her hygiene; dressing herself; following a morning routine to get
ready for school; meal preparation and she requires prompting to eat;
managing money (she does not understand the value of money an d cannot
count money); initiating and completing domestic chores; traveling; and her
social reactions (requires monitoring as she lacks judgement and is extremely
vulnerable to exploitation).
[14] Drs De Witt and Nkwanyana agreed that the plaintiff continues to experience
anxiety as a pedestrian and resists walking past the place where the accident
occurred. Furthermore, her mood is reported to be stable; she smiles and
laughs excessively and gives the impression of being happy most of the time.
[15] Drs De Witt and Nkwanyana stated that they agree with Dr Sutherland,
Psychiatrist, that the plaintiff seems to be unable to adequately verbalise her
emotional and internal experiences, which in the future, may lead to increased
frustration and acting out behaviour.
[16] Drs De Witt and Nkwanyana further stated that the plaintiff presents with
profound neuropsychological deficits which are in keeping with the nature and
severity of brain injury she sustained in the accident in question. In this regard,
they opined that from a neuropsychological perspective, her deficits are
permanent, and no significant improvement in her level of functioning is
anticipated.
[17] In fact, they aver that the plaintiff’s severe deficits have become even more
evident over time, as she has failed to reach age-appropriate cognitive,
behavioural, and social milestones, which resulted in a progressively widening
gap between her and her peers. She has been unable to acquire basic life skills
and at the age of 15 years re mains entirely dependent on guidance and
supervision for all activities of daily living.
[18] Against this background, Dr De Witt and Nkwanyana concluded that the
appointment of a curator bonis, curator ad litem, and curator personae is
necessary. Furthermore, the plaintiff will require a high level of care and
supervision for the rest of her life, and long -term placement at a care facility
should be considered. Lastly, provision should be made for treatment by a
psychiatrist.
M Le Roux and R Ramoganyana (Occupational Therapists)
[19] The Occupational Therapists stated that they observed severe attention
deficits, poor memory, slow processing speed, and significantly impaired visual
perceptual skills and visuomotor integration from the plaintiff.
[20] Furthermore, s he str uggles to comprehend and respond to even simple
instructions, lacks basic cognitive skills such as colour, shape, and number
recognition, and is unable to write her name or perform basic calculations.
Cognitive maturity is well below average, her problem -solving and judgement
are poor, and she demonstrates literal thinking and limited comprehension.
[21] According to the Occupational Therapists, w hile the plaintiff retains basic
[21] According to the Occupational Therapists, w hile the plaintiff retains basic
mobility, her motor skills are compromised by low muscle tone, poor
coordination, dy spraxia, impaired balance, and weak fine motor control with
poor bilateral integration.
[22] They stated that s he is largely non -verbal, unable to engage in meaningful
conversation, and displays emotional immaturity, social difficulties, and
dysregulation. Thes e impairments have permanently impacted her
independence, participation in life roles, enjoyment of life, and any prospects
for employability.
[23] The Occupational Thera pists opined that the plaintiff had normal early
childhood development and was progressing adequately through mainstream
schooling until the accident. However, the accident disrupted her educational
trajectory, leading to placement in a specialised educational setting.
[24] Accordingly, she has since shown extremely limited progress and despite
efforts to promote her through grades with significant assistance, her scholastic
achievements have remained minimal. Furthermore, she is not expected to
develop the fundamental educational skills nece ssary to read, write, or perform
basic mathematical tasks at a functional level, and will thus remain essentially
illiterate.
[25] They further opined that the cumulative effects of her cognitive, emotional, and
physical impairments severely limit her employabi lity, rendering her
permanently unemployable in the open labour market as an adult.
[26] Against this background, the Occupational Therapists stated that they support
the appointment of curators. They are of the opinion that the plaintiff will never
be able to live independently and requires lifelong supervision and guidance.
Provision is advised for a qualified carer who can also assist with domestic
tasks. Should she develop epilepsy, 24/7 live-in care may be required.
[27] Further, the appointment of a case manager is essential to monitor her ongoing
needs. If her current home becomes unsuitable or unavailable, placement in a
residential care facility could be considered and p sychological intervention is
also supported.
[28] Lastly, point-to-point transport should be ar ranged for the plaintiff and her carer
for the remainder of her life due to her cognitive and functional impairments and
annual occupational therapy follow-up is advised to monitor her progress within
a special school setting.
Dr T Sutherland (Psychiatrist)
[29] Dr Sutherland opined that the plaintiff was far more childlike than expected
given her chronological age. She smiled fatuously and was overfamiliar. She
confabulated and her answers were brief, unelaborated and not always relevant
to the top ic at hand. Questions had to be repeated as she did not always
understand what was asked. She did not appear to have any insight into her
difficulties which is not unexpected given her level of cognitive impairment.
[30] Dr Sutherland stated that the plaintiff did not know her age or the name of her
school. She did not know her address or what suburb she lived in. She was not
able to write her name or surname and could not count to five but she was able
to make rudimentary drawings of a house and a person.
[31] Dr S utherland opined a s per the guides the claimant is rated using the
Psychiatric Impairment Rating Scale (PIRS); section 14.7. This gives a PIRS
impairment score of 5%. The claimant is also rated using the Brief Psychiatric
Rating Scale (BPRS); section 14.8. This gives a score of 41 which is converted
to a BPRS impairment score of 5%.
[32] Furthermore, an update published online on the AMA website on 9 July 2021
advised that the global assessment of functioning scale no longer be used to
rate mental and behaviour al impairment. Impairment rating is thus calculated
below by averaging the scores of the BPRS and PIRS as per revised
guidelines.
[33] According to Dr Sutherland, t his gives a rating of 5% for mental and
behavioural disorders. This is combined with the ratings for the central nervous
system of 44% as per Dr Domingo giving a combined WPI of 47%.
[34] Dr Sutherland stated that the plaintiff sustained a severe traumatic brain injury
with a diffuse axonal injury. Diffuse axonal injury is the widespread shearing of
neurons in the brain which can result in diverse and severe neurological and
cognitive symptoms. The plaintiff’s post injury course was complicated by a
period of hypoxia and raised intracranial pressure which likely resulted in the
development of a secondary brain injury.
[35] Dr Sutherland opined the plaintiff required a prolonged period of ventilation and
a tracheostomy was sited. She was initially unable to walk. During her time in
hospital, she was described as extremely distractible and disinhibited. She was
very impulsive and displayed inappropriate behaviour. On discharge from St
Joseph’s, it was noted that her impulsivity and poor reasoning and judgement
place her at risk and constant supervision was needed to ensure her safety and
prevent her from being taken advantage of.
[36] Dr Sutherland opined that the impression gained during the interview was that
the plaintiff does not seem capable of verbalising her emotions and internal
experiences. In the future her inability to make her emotions known verbally or
to ac hieve her objectives via verbal communication may lead to increased
frustration and result in externalising behavioural difficulties.
[37] Against this background, Dr Sutherland opined that the plaintiff will be
unemployable in the open labour market. She is ve ry vulnerable to abuse,
exploitation and neglect and will remain vulnerable into adulthood. She will be
unable to adequately manage her finances and protection is required.
Accordingly, Dr Sutherland suggested the a ppointment of a curator ad litem
and a curator bonis and the appointment of home -based care ers and/or
placement in a residential care facility as personal circumstances dictate over
her lifetime.
K Gerber and MP Ndlovu (Educational Psychologists)
her lifetime.
K Gerber and MP Ndlovu (Educational Psychologists)
[38] The Educational Psychologists agree that the motor vehicle accident has had a
profound impact on plaintiff’s overall cognitive, academic, and functional
abilities. They b oth agree that the plaintiff presents with significa nt
neurocognitive, language, and functional impairments, consistent with the
severe traumatic brain injury sustained in the accident.
[39] The Educational Psychologists opined that they noted that the plaintiff was 8
years and 9 months old at the time of the accident on 29 January 2019. She
sustained a severe traumatic brain injury and required prolonged hospitalisation
and intensive care.
[40] Both experts agree that, had the accident not occurred, the plaintiff would
probably have been able to complete Grade 12 (NQF 4) and would have gone
on to complete further studies at NQF 6 level.
[41] Both experts agree that the plaintiff displays features consistent with severe
neurocognitive impairment. Clinical observations revealed immature behaviour,
perseveration, and disor ientation. Observations included poor insight,
confusion, impaired communication, and a lack of awareness of personal
details. Further, that her current psychological profile is marked by emotional
and behavioural dysregulation and profound cognitive-emotional impairment.
[42] Against this background, the Educational Psychologist opined that the plaintiff
is severely academically delayed and unable to engage meaningfully in formal
learning. WIAT-III scores were at the floor level across all domains, and
academic skills were at a preschool level.
[43] Furthermore, b oth experts agree that she will not attain a formal academic
qualification and is not educable within the mainstream or even remedial
academic systems. Lastly, she will require extensive assistance in all aspects
of daily living and will remain dependent on others for the remainder of her life.
[44] Accordingly, a curator bonis should be appointed to manage any awarded
funds.
K Kotze and NYF Zwane (Industrial Psychologists)
[45] The Industrial Psychologists stated that they note that Ms R de Wit (Clinical
Psychologist and Neuropsychologist) and Dr NL Nkwanyana (Clinical
Psychologist and Neuropsychologist) and Dr NL Nkwanyana (Clinical
Psychologist), agree that the plaintiff would have been able to complete Grade
12, pursue further education, acq uire skills, and sustain employment in the
open labour market. Further, they note that the Educational Psychologists,
similarly believe that the plaintiff would probably have been able to complete
Grade 12 (NQF 4) and would have gone on to complete further studies at NQF
6 level.
[46] Given the above, the Industrial Psychologists opined that the plaintiff would
probably have completed her secondary education by 2029. Assuming that the
plaintiff studied on a full -time basis, she would probably have completed her
studies by 2033 or 2034 and she would probably have entered the open labour
market by 2035 or 2036.
[47] Therefore, but for the accident, the plaintiff would have secured employment,
probably by 2035 to 2036 and she would probably have commenced earning
remuneration commensurate with the level of job complexity associated with
Paterson Grade B4 (median, total package). As per the Quantum Yearbook, in
2025 terms, this is presented as R373 000.00 per annum.
[48] The Industrial Psychologists further opined that as she gained work experience,
from age 30, the plaintiff would probably have been able to expand her work -
related skills-set, which in turn would have enabled her to secure employment
of a higher level of job complexity. She would probably have been able to earn
remuneration commensurate with the level of job complexity associated with
Paterson Grade C1 (median, total package). As per the Quantum Yearbook, in
2025 terms, this is presented as R526 000.00 p er annum. Straight -line
increases up to age 30 would probably have applied.
[49] According to Dr K Kotze, upon reaching her career ceiling at age, the plaintiff
would probably have been able to earn remuneration commensurate with the
level of job complexity associated with Paterson Grades C3/C4 (median, total
package). As per the Quantum Yearbook, in 2025 terms, these are presented
as C3: R668 000.00 per annum and C4: R797 000.00 per annum, respectively.
as C3: R668 000.00 per annum and C4: R797 000.00 per annum, respectively.
[50] Dr NYF Zwane is of the opinion that with further career progression, the plaintiff
would have likely reached her career ceiling within Paterson level C2/C3, total
packages by the approximate age of 45. To corroborate the aforesaid career
ceiling, cognisance is taken of the salary information noted by STATSSA
earnings by level of education (R. Koch, 2025) which stated that individuals
with a diploma in their later career usually earn within the upper range of
R622 000.00 per annum.
Actuary expert report (Munro consulting)
[51] The Actuary provided the following summary of loss of income:
a. The Actuary used a calculation dated of 1 August 2025.
b. The Actuary a ssumed the career path and earnings opined by the
Industrial Psychologists in their joint minute.
c. The Actuary applied contingencies of 20% to future uninjured earnings.
d. Provided calculations for each scenari o and then also an average, as
suggested by the Industrial Psychologists in.
e. Provided an average calculation after contingencies of R7 037 600-00.
Issues
[52] Against this background, this court is required to determine quantum regarding
the following issues:
a. General damages
b. Past and Future medical expenses; and
c. Past and Future loss of earnings.
[53] I deal with each of these issues below.
General damages
[54] The plaintiff claim compensation for general damages in the amount of
R3 500 000.00. This was disputed by the defendant. In fact, the defendant
argued that this court should grant the plaintiff the amount of R2 000 000.00 in
general damages.
The Law
[55] Having said that, i t is trite that the assessment of the quantum of general
damages primarily remains within the discretion of the court. In Pitt v Economic
Insurance Company Ltd1 the court stated the following:
“… [T]he Court has to do the best it can with the material available, even if, in the
result, its award might be described as an informed guess. I have only to add
that the Court must take care to see that its award is fair to both sides - it must
give just compensation to the plaintiff, but must not pour our largesse from the
horn of plenty at the defendant's expense.”
[56] In RAF v Marunga2 it was held that:
“[I]n cases in which the question of general damages arose, a trial Court had a
wide discretion to award what it considered to be fair and adequate
compensation to the injured party.
There was no hard and fast rule of general application requiring a t rial Court to
consider past awards, although the Court might derive some assistance from the
general pattern of previous awards.”
[57] In Protea Assurance Co. Limited v Lamb3 the court held:
“... [T]he Court may have regard to comparable cases. It should be emphasised,
however, that this process of comparison does not take the form of a meticulous
examination of awards made in other cases to fix the amount of compensation;
nor should the proce ss be allowed so to dominate the enquiry as to become a
fetter upon the Court's general discretion in such matters. Comparable cases,
when available, should rather be used to afford some guidance, in a general
way, towards assisting the Court in arriving at an award which is not substantially
out of general accord with previous awards in broadly similar cases, regard being
11957 (3) SA 284 (D) at 287E-F
2 2003 (5) SA 164 at 165B
3 1971 (1) SA 530 (A) at 535H-536B
had to all the factors which are considered to be relevant in the assessment of
general damages. At the same time, it may be permissible , in an appropriate
case, to test any assessment arrived at upon this basis by reference to the
general pattern of previous awards in cases where the injuries and their
sequelae may have been either more serious or less than those in the case
under consideration.”
Reasons for the decision
[58] Against this background , I have considered decided cases with approximately
similar facts as in this matter. For instance, Bonessa v Road Accident Fund 4
involved a 13 -year-old female who sustained a severe closed head injury,
multiple rib fractures, hemopneumothorax, fractured thoracic spine, injury to the
spinal cord and paraplegia. She underwent surgical procedures and became
wheelchair dependent with limited abi lity to manage bi -manual tasks and was
incontinent of urine and stool. She suffered post -traumatic dementia and
severely compromised speech, vision, memory and executive functioning.
There was also a frontal lobe injury, which caused her to become aggressi ve,
disinhibited and emotionally isolated. She had a promising scholastic and
vocational future before the accident occurred. The injuries rendered her
uneducable and unemployable. She was awarded R2 500 000.
[59] In Adv M van Rooyen NO obo JPM van Reenen v Roa d Accident Fund 5
involved a young man in his twenties suffered a severe head injury with
permanent physical, cognitive and neuropsychological sequelae. He was
hospitalised for a prolonged period and underwent a range of invasive medical
procedures. He su ffered from hemiparesis and was essentially wheelchair -
bound, although he was able to walk for short distances. He required ongoing
care and supervision and was considered unemployable. The court awarded R
2 200 000 in general damages.
[60] Whilst there are cer tain similarities between these cases and this matter, each
[60] Whilst there are cer tain similarities between these cases and this matter, each
of these cases differ on the facts and the considerations raised therein from the
4 2014 (7A3) QOD 1 (ECP)
5 [2017] ZAGPPHC 1279 (8 December 2017)
present. They nevertheless serve as a guide to the general trend in the value of
awards made. To the extent that guidance may be derived from these matters I
have therefore considered them.
[61] In deciding on the reasonable and fair compensation, I was cognisant that it
was stated in Wright v Road Accident Fund 6 quoting Wright v Multilateral
Vehicle Accident Fund reported in Corbett and Honey where Broom DJP stated
that when having regard to previous awards one must recognise that there is a
tendency for awards now to be higher than they were in the past.
[62] I believe this to be a natural reflection of the changes in societ y, the recognition
of greater individual freedom and opportunity, rising standards of living and the
recognition that our awards in the past have been significantly lower than those
in most other countries.
[63] Accordingly, on a consideration on all the facts of the present matter and
awards previously made in similar matters, I have concluded that an award in
the amount R 2 000 000.00 would represent fair compensation.
Past and Future medical expenses
[64] On past hospital and medical expenses, it is common cause that the defendant
has been provided with documentation which supports the plaintiff claim in this
regard in the amount of R211 939.00. In my view, I do not see any reason why
the plaintiff’s claim should not succeed. Accordingly, the plaintiff’s claim for past
medical expenses succeeds.
[65] Regarding the plaintiff’s future medical/hospital expenses, the plaintiff seeks an
undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of
1996 (the RAF Act) as indicated by the experts in their medico-legal reports.
[66] Concerning the future medical treatment there appears to be no contentious
issues there. It has not been contested that the plaintiff is entitled to a section
17(4)(a) undertaking and I am accordingly satisfied that the claim on this h ead
should succeed.
6 [2011] ZAECPEHC 15 at para 23.
Loss of earning
[67] It is accepted that earning capacity may constitute an asset in a person's
patrimonial estate. If loss of earnings is proven the loss may be compensated if
it is quantifiable as a diminution in the value of the estate. 7 Accordingly, for a
claim to succeed, the injured person or plaintiff must prove that they suffered a
reduction in the earning capacity which will result in the actual loss of income.
[68] It must also be noted that, in Rudman v Road Accident Fund8, it was stated that
a physical disability which impacts on the capacity to earn an income does not,
on its own, reduce the patrimony of an injured person. In other words, t he
plaintiff must prove that the reduction of the income earning capacity will result
in actual loss of income. He must prove the physical disabilities resulting in the
loss of earnings or earning capacity and also actual patrimonial loss.
[69] In this matter, the expert opinions are all of the view that the accident has
resulted in long -term physical restrictions and cognitive impairment that
significantly limit the plaintiff’s ability to live her life independently. Further, she
will never enter the open labour market and will require life long care. Lastly, the
experts agree that she will require extensive assistance in all aspects of daily
living and will remain dependent on others for the remainder of her life.
[70] In addition, the Industrial Psychologist s is of the opinion that , but for the
accident, the plaintiff would have secured employment, probably by 2035 to
2036 and she would probably have commenced earning remuneration
commensurate with the level of job complexity associated with Paterson Grade
B4 (median, total package).
[71] The Industrial Psychologists further opined that as she gained work experience,
from age 30, the plaintiff would probably have been able to expand her work -
related skills-set, which in turn would have enabled her to secure employment
related skills-set, which in turn would have enabled her to secure employment
of a higher level of job complexi ty. She would probably have been able to earn
7 Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) at 409C-410A.
8 2003 (2) SA 234 (SCA) at para 11.
remuneration commensurate with the level of job complexity associated with
Paterson Grade C1 (median, total package).
[72] Based on the above expert report of the Industrial Psychologist s, the Actuary
concluded that the total amount of compensation for the plaintiff’s past and
future loss of earnings therefore amounts to R7 037 600.00. The Actuary
arrived at this amount after applying the contingency of 20%.
[73] On the other hand, the defendant argued that a higher percentage should be
deducted because the plaintiff suffered from Corpus Callosun Agenesis at the
time of the accident. This was also confirmed by the medical information and
CT scans. I am of the view that the defendant ’s argument in this regard is
incorrect. Besides mention the fact that the plaintiff suffered from Corpus
Callosun Agenesis , the defendant has failed to prove to this court that the
sickness contributed to the plaintiff’s accident. Accordingly, it will be unfair for
this court to apply a higher percentage of contingency purely on the basis that
the plaintiff suffered from Corpus Callosun Agenesis without any evidence that
suggest that the sickness contributed to the plaintiff being involved in the motor
vehicle accident.
[74] Further, the defendant argued that the contingency of 25% should be applied.
In this regard, the defendant relied on the decision of the Supreme Court of
Appeal in Road Accident Fund v Guedes (Guedes)9. In my view, the
defendant’s reliance on Guedes is misplaced. Guedes involved a plaintiff who
was already 22 years of age at the time sustaining bodily injuries due to the
motor vehicle accident and the plaintiff in this matter is a young girl who will
require everyday caregiver because of the injuries she sustained.
[75] More pointedly, the plaintiff in Guedes was able to resume work on a part -time
basis, whereas in this matter, it is clear from the expert evidence that the
plaintiff’s prospects of working are nil considering the severity of the i njuries
plaintiff’s prospects of working are nil considering the severity of the i njuries
sustained because of the motor vehicle accident. Accordingly, to compare this
matter with Guedes will be like comparing apples with oranges.
9 2006 (5) SA 583 (SCA).
[76] Having said that, it should be noted that it is trite that the actuarial calculations
must be based on proven facts and realistic assumptions regarding the future.
The actuary guides the court in making calculations. The court has a wide
judicial discretion and therefore the final say regarding the calculations.
[77] In this matter, the Actuaries relied on the opinion evidence of the Industrial
Psychologists, which in my view was correct . In my view, I am satisfied that
with the opinion of the Industrial Psychologist s that the ear ning capacity of the
plaintiff had been lost to a point that his patrimony is reduced in due course.
[78] The Industrial Psychologist s expert reports are properly motivated . It follows
therefore that the actuarial calculations made by the Actuar y stand since they
were arrived at using the opinion of the Industrial Psychologist s which is, in my
view, properly motivated.
[79] I am therefore persuaded that the evidence supports the claim that the plaintiff
has suffered loss of earnings capacity because of the injuries sustained in the
collision. Consequently, the plaintiff’s claim for loss of future earnings succeed.
I have concluded that an award in the amount R7 037 600.00 would represent
fair compensation.
Costs
[80] The general rule in matters of costs is that the successful party should be given
his costs, and this rule should not be departed from except where there be
good grounds for doing so, such as misconduct on the part of the successful
party or other exceptional circumstances. The plaintiff was successful on all the
issues. Accordingly, I do not see any reason why the general rule should not
follow the result.
Order
[81] The court granted an order by agreement that covered the claims of Plaintiff
and costs, including the costs of the experts as well as Counsel’s costs, on 25
July 2025. The order below shall reflect the aforementioned order as far as
possible. In the result, I make the following order:
1. The Defendant shall pay 100% of the Plaintiff’s proven claim.
2. The Defendant is ordered to pay the Plaintiff the amount of R 9 249
539.00 transfer to the trust account, details of which are set out hereunder
(“the capital amount”).
3. The capital amount is made up as follows:
a. General Damages: R 2000 000.00;
b. Past medical expenses: R211 939.00; and
c. Future loss of earning: R7 037 600-00.
4. The Defendant indemnifies the Plaintiff against any claims by suppliers in
respect of past medical and hospital expenses.
5. Payment of the aforesaid sum must be made directly to the Plaintiff’s
Attorneys of Record, ADENDORFF INC. by direct transfer into their trust
account with the following details:
ACCOUNT HOLDER : ADENDORFF INC
BANK : FIRST NATIONAL BANK
BRANCH CODE : 201 409
ACCOUNT NUMBER : 6[…]
REFERENCE NUMBER : WIL79/0001
6. The Defendant is ordered to furnish the Plaintiff with an unlimited
undertaking within 30 days from date hereof, free from caveats and
qualifications, in terms of section 17(4)(a) of the Road Accident Fund Act,
for 100% (one hundred percent) of the costs of the future accommodation
of the Plaintiff in a hospital or nursing home or treatment of or rendering of
a service to Plaintiff or supplying of goods to Plaintiff arising out of the
Plaintiff’s injuries sustained in the motor vehicle collision which gave rise
to the action, after such costs have been incurred and upon proof thereof.
7. The issue and consideration for the appointment of a Curator Bonis is
referred to the Western Cape High Court, where the application for the
appointment of the Curator Bonis is still pending.
8. In the event of the Western Cape High Court, or another competent Court
having jurisdiction, appointing a Curator Bonis to the P laintiff, the
Defendant shall pay the costs of the Curator Bonis, as taxed or agreed,
such costs including for the sake of clarity, but not limited to, the following:
a. The costs of the application to the appoint the Curator Bonis on the
High Court scale as between party and party, as taxed or agreed,
plus VAT (“the application costs”).
b. The costs, if any, incurred by the Curator Bonis in furnishing security
to the Master.
c. The fees and costs of the Curator Bonis in respect of administering
the capital and the undertaking.
d. The fees of the Curator Bonis shall be paid by way of the
Undertaking.
e. That the nett proceeds of the payment to the plaintiff referred to in
this Order as well as the plaintiff’s taxed or agreed party & party
costs payable by the defendant, after deduction of the plaintiff’s
attorney and own client costs, shall be payable to the Curator Bonis.
9. Until such time as the Curator Bonis is able to take control of the capital
amount, the Plaintiff’s attorneys are authorised and ordered to make any
reasonable payments to satisfy any of the needs of the Plaintiff that may
arise and that are required in order to satisfy any reasonable need for
treatment, care, aids or equipment that may arise in the interim.
10. The Defendant shall pay the Plaintiff’s taxed or agreed High Court Scale
party and party costs and the Plaintiff’s travelling and related costs to the
Defendant’s appointments, subject to the discretion of the Taxing Master,
inclusive of t he costs related to any motions and applications and
including for the sake of clarity, but not limited, to the costs of the
Plaintiff’s instructing attorneys, Adendorff Incorporated in Cape Town and
the correspondent attorneys in Pretoria, Savage Jooste a nd Adams Inc,
as well as the other costs set out hereunder.
11. Regarding the expert witnesses listed below (“the experts”), the taxed or
agreed qualifying expenses, if any, the taxed or agreed attendance,
traveling, waiting time, if any, the costs attached t o the procurement of the
Medico-Legal and other reports, inclusive of those referred to, as well as
RAF4 and Narrative reports, including x -rays, MRI scans, Pathology
reports, addendum reports, confirmatory affidavits and all consultations
with counsel and Plaintiff attorneys. The experts are:
a. Dr J Reid (Neurologist)
b. Dr Zayne Domingo (Neurosurgeon)
c. Dr Taryn Sutherland (Psychiatrist)
d. Ms Renee De Wit (Clinical and Neuro Psychologist)
e. Ms Dale Ogilvy (Speech and Language Therapist)
f. Ms Michelle Bester (Occupational Therapist)
g. Ms Martinette Le Roux (Occupational Therapist)
h. Ms Megan Clerk (Educational Psychologist)
i. Ms Karin Gerber (Educational Psychologist)
j. Ms Karen-Jerling Kotze (Industrial Psychologist)
k. Munro Consulting (Actuaries)
12. The costs counsel, inclusive of preparation, day fees and Heads of
Argument, on scale C.
13. The costs of the Curatrix ad Litem, inclusive of days fees, on scale B.
14. The application costs of appointing the Curatrix ad Litem.
15. The costs of Dr Zayne Domingo (Neurosurgeon ), Dr Taryn Sutherland
(Psychiatrist), Ms Renee De Wit (Clinical and Neuropsychologist), Ms
Karin Gerber (Educational Psychologist), Ms Karen -Jerling Kotze
(Industrial Psychologist), and Mr Willem Boshoff (Actuary) attending trial
to testify, including pre paration, qualifying and attendance fees according
to their individual hourly rates.
16. The capital is to be paid within 180 days of service of this order, but
interest shall accrue at the prescribed interest rate, from the 15 th day of
service of this order.
17. Costs are to be paid within 14 days of settlement or taxation, but interest
shall accrue at the prescribed interest rate, from the 15 th day of settlement
or taxation.
18. The above costs shall be paid into the Applicant attorne y’s trust account
as mentioned in paragraph 5 above.
19. It is recorded that the Plaintiff entered into a contingency fee agreement
and that same complies with the Act.
___________________________
MD BOTSI-THULARE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
22
APPEARANCES
Counsel for the Plaintiff:
Adv Frans Ras (SC)
Email : fransaras@gmail.com
Instructed by:Savage Jooste & Adams
Counsel for the Defendant:
Instructed by: State Attorney /
Ramadimetsa Mothiba
Email : Ramadimetsam@raf.co.za
RAF Claim Handler : Uthmaan Francis
Date of Hearing : 25 July 2025
Date of Judgment: 26 August 2025