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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case no: 34761/18
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 7/10/2025
SIGNATURE
In the matter between:
ADV L BOSMAN N O OBO W[...] M[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PIENAAR AJ
Introduction
1. On or about 22 January 2017, on the N7 roadway (“the roadway”), Citrusdal, Cape a
motor vehicle with registration number F[...], driven by Nkopane (“the insured driver”),
left the roadway and overturned after the insured driver lost control thereof. The minor
child W[...] M[...] was a passenger in the Insured vehicle at the time of the collision. The
RAF conceded liability on the merits, leaving quantum in dispute.
2. As a result of the injuries sustained by W[...] M[...], a curator ad litem had to be
appointed to him to institute action on his behalf. Consequently, Adv Lauren Bosman
(the plaintiff), a practicing advocate, was duly appointed curator ad litem to W[...] M[...],
and he is as such suing the Road Accident Fund (the Fund) for damages in respect of
bodily injuries sustained by W[...] M[...] during the collision in question.
3. This matter came before me at the Default Judgment Court on 1 July 2025. When the
matter was called, Adv. Strydom appeared on behalf of the Plaintiff, and Ms. Riba
appeared for the State Attorney. Both parties agreed that this matter stand down until
Thursday, 3 July 2025, for the RAF to obtain instructions for an offer.
4. On 7 February 2024, before the Honourable Judge Rangata AJ, the Defendant’s
defence was struck out. Plaintiff’s counsel, Adv. Strydom, agreed that the State
Attorney, Ms. Riba, could proceed to make submissions during the trial. On that basis,
the State Attorney made the following submissions: An interim payment of R500,000 for
loss of earnings is to be tendered. The remainder of the loss of earnings to be
postponed sine die. With regard to General damages, the RAF has accepted that the
injury is serious; however, no formal offer has been made. Nevertheless, Ms. Riba
submitted that an amount of R1,200,000 for General damages would be fair and
reasonable.
5. On 17 February 2025, Plaintiff Attorneys, served physically and electronically, in
terms of Rule 28(1), served a Notice of amendment of Particulars of claim on the
Defendant. In terms of the amendment, Plaintiff’s amounts claimed were increased to
the following:
Past hospital and medical expenses R500 000-00
Future medical expenses Undertaking in terms of Section 17(4)(a)
Past and Future loss of earnings R10 000 000-00
General Damages R4 000 000-00
TOTAL R14 500 000-00
6. On 5 March 2025, Plaintiff Attorneys, served physically and electronically, the
Plaintiff’s amended pages (amended particulars of claim) upon the Defendant.
7. The Plaintiff’s made an application in terms of rule 38(2) of the Rules, that evidence
be produced by way of an affidavits, therefore, the application was granted.
Issues for determination
8. On 3 July 2025 the defendant State Attorney, Ms Riba, submitted that the claim for
loss of earnings should be postponed sine die. However, the Court is of the view that
the Plaintiff is entitled to proceed with both the claim for loss of earnings and general
damages in this matter, as there will be no prejudice to the Defendant. It is now more
than eight years since the accident and his deficits are permanent - Dr Domingo
(Neurosurgeon) paragraph 8.8 - CaseLines 006-9
9. This matter is being heard eight years later. The RAF could have instructed experts
on the issue, but the only expert presented by the Defendant is Dr. Ngqandu, a
neurosurgeon, whose report is dated 2019. The Defendant's defence has been struck
off. Therefore, the court grants that the matter may proceed.
Quantum
9. According to the medico legal and addendum reports as well as hospital records
W[...] M[...] sustained the following injuries and sequelae which is of significance in
determining his loss of income:
1. Left frontal extra cranial soft tissue swelling
2. Right frontal bone fracture
3. Left parietal bone fracture
4. Traumatic brain injury of moderate severity with associated skull fractures with
significant residual cognitive, cognitive-communicative and behavioural problems.
Megan Clerk - Educational Psychologist
Pre accident potential
10. Megan Clerk assessed W[...] M[...] on 1 June 2021. At the time of the accident W[...]
was one year and eight months old. The family educational history revealed that none of
W[...] M[...]’s family members have completed a Grade 12 (NQF 4) level of education.
Three family members obtained a Grade 9 (NQF 1) level of education including two of
his paternal aunts as well as his oldest brother. His mother obtained a Grade 7 level of
education. His older sister is currently a Grade 4 learner and his twin brother also
commenced with Grade R in 2021. Considering the above, and the fact that W[...] M[...]
sustained a significant head injury in the accident, his organic cognitive potential was
likely negatively impacted. He would have had the capacity to complete at least a Grade
10 (NQF 2) level of education (as his father has done). He would probably have benefit
from skills training in order to learn a marketable skill for future vocation or become a
seasonal farm worker as his father did.
Post accident potential
11. Following W[...] M[...]’s involvement in the accident on 22 January 2017, it is noted
that he suffered a moderately severe closed head trauma with skull fractures
(Neurologist) as well as scalp lacerations and a frontal linear fracture. Collaboratively,
these lead to permanent neuro cognitive change which will negatively impact on his
education and career earnings (Neurologist).
12. W[...] did not attend any schooling or creche until 2021. According to the progress
letter dated 30 April 2021 W[...] struggles to remember and recall certain information, is
not able to concentrate within a group, is easily distracted, reacts very slow, and
requires a lot of individual attention and support from his teacher. Despite these
difficulties, W[...] has a positive approach to learning and gives his best to competing
tasks. Ms Clerk reported that she of the view that it is unlikely that W[...] will be able to
achieve academically and will probably reach an educational ceiling in Grade 9 (NQF 1-
Remedial) or 10 (NQF 2 - Remedial).
Karin Gerber - Educational Psychologist
Pre morbid potential
13. Considering his early developmental trajectory and the educational attainment of
close family members (including his sister currently completing Grade 12 despite
becoming disabled in the same accident) it is reasonable to conclude that W[...] would
have had the cognitive and academic capacity to complete Grade 12 (NQF 4) in a
mainstream academic environment. It is further probable that had the injury not
occurred, W[...] could have pursued a tertiary qualification at the NQF 6 level.
Post morbid potential
14. Expert opinion of Dr Ogilvy and Dr Domingo concurs that these deficts are
permanent and materially affect his academic and functional potential. W[...] is unlikely
to progress beyond Grade 9 (NQF 1) and his risk of grade failure remains high given his
limited verbal reasoning, executive functioning and auditory memory capacity.
Kotze Blake and Associates
Pre morbid scenario
15. Ms Kotze assessed W[...] on 30 March 2022 and an addendum report was done on
27 June 2025. W[...] would have secured employment probably by 2033 on a Paterson
B4 level earning R373 000 per annum. As he gained experience, he would probably
have been able to expand his work related skills set, which in turn would have enabled
him to secure employment of a higher level of job complexity. With the level of job
complexity associated with Paterson Grade C1 (median, total package), earning R526
00 per annum. Upon reaching his career ceiling and on the proviso of the availability of
vacancies and successful application, W[...] would probably have been able to earn on
a Paterson Level C3 and C4 level. Retirement age of 65 years.
Post morbid scenario
16. According to Ms De Witt allowing for two grades failure advised that W[...] is at high
risk of failing grades, especially in high school. He would probably have commenced
employment, probably by 2027 to 2038. For 2025 his presented income is R28 8800
per annum. Retirement age of 65 years.
Munro actuaries
17. Munro actuaries applied uninjured 20% and injured 25% contingencies. Plaintiff
Counsel Adv Strydom submissions is to apply 25% uninjured and 35% injured, is fair
and reasonable.
18. Nicholas JA in Southern Insurance Association Ltd v Bailey NO [1] stated:
‘Any enquiry into damages for loss of earnings capacity is of its nature speculative,
because it involves a prediction as to the future, without the benefit of crystal balls,
soothsayers, augurs 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 the loss. It has open to it two
possible approaches. One is for the Judge to make a round estimate of an amount
which seems to him to be fair and reasonable. That is entirely a matter of guess work, a
blind plunge into the unknown. The other is try to make an assessment, by way of
mathematical calculations, on the basis of the assumptions resting on the evidence. The
validity of this approach depends of course upon the soundness of the assumptions,
and these may vary from the strongly probable to the speculative. It is manifest that
either approach involves guess work to a greater or lesser extent. But the Court cannot
for this reason adopt a non possum's attitude and make no award.’
18. The widely accepted benchmark in South African case law stems from the “sliding
scale” approach popularised by Robert Koch. This model applies a general deduction
of 0.5% per year to retirement age, typically resulting in:
1) 25% for a child,
2) 20% for a young adult, and
3) 10% for a middle-aged person.
19. However, Koch’s model is only a guide. Courts retain the discretion to vary the
contingency percentage upward or downward based on the claimant’s personal
circumstances and the broader socio-economic context. As confirmed in Legal Aid
South Africa v Magidiwana and Others[2]:
“ Expert evidence, including actuarial evidence, is designed to assist the court in areas
outside its ordinary expertise. However, it is for the court to determine what weight to
attach to such evidence.”
20. Accordingly, applying a 30% contingency deduction to the pre-morbid earnings
figure of R7,993,300 results in a net pre-accident loss of R5,595,310.00. This
adjustment represents a realistic appraisal of the plaintiff’s likely prospects in the open
labour market and helps to avoid the risk of unjust enrichment. It is noted that W[...] is
still young and hasn't failed any grades yet. A 40% contingency deduction should be
applied to the post-morbid earnings figure of R508,100, resulting in a net amount of
R304,860.00.
21.The difference between the pre- and post-morbid earnings amounts to
R5,290,450.00.
General Damages
22. The parties are agreed that W[...] should be compensated for general damages.
The Plaintiff’s submission is that W[...]’s general damages are worth at least R2 100
000 million rand . In support of this contention, the Plaintiff’s counsel referred me to the
following judgments:
1. Zarrabi v RAF 2006 (5B4) QOD 231 (T), in the Pretoria High Court, De Vos Judge on
6 April 2006, awarded general damages of R800 000 with a currently value of R2 291
000, to a 30 year old female trainee medical specialist who sustained a severe diffuse
axonal brain injury with severe neuron-physical, neuro cognitive and neuro psychiatric
consequences, multiple facial lacerations, fractures nose, contusions of the chest with
bilateral contusions of the lungs, rupture of the liver, contusion of the kidneys with
hematuria, closed fracture of the right humerus, open fracture of the right radius and
ulna, loss of vision of the right visual field and lack of drive.
23. The State Attorney, Ms Riba submitted that there is no instructions amount. The
minor child sustained only a head injury. The Court should consider what is fair and
reasonable. She is of the view that an amount of R1 200 000 for General damages is
fair and reasonable .
24. It is trite that there is no hard and fast rule of general application requiring a trial
court or a court of appeal to consider past awards. This is because it is difficult to find a
case on all fours with the one being heard.
25. The award of general damages is by no means an easy task. There is no basic
formula for the assessment of this kind of damages.
26. There is no doubt that W[...] has suffered severe injuries and he must be fairly
compensated. I am therefore of the view that when considering the injuries by W[...] and
the general trend followed by the courts in awarding, it would be fair and reasonable if
he is awarded an amount of R1 700 000,00.
I therefore make the following order:
1. Draft Order X as amended is made an Order of Court.
M PIENAAR
ACTING JUDGE OF THE HIGH COURT
OF THE GAUTENG DIVISION, PRETORIA
Heard on : 3 July 2025
Judgment delivered : 7 October 2025
The judgment was handed down electronically by circulation to the parties presentative
by email, by being uploaded to CaseLines. The date and time for hand down is deemed
to be 7 October 2025.
Appearances
On behalf of the Plaintiff : Adv Carel Strydom
Instructed by : Savage Jooste & Adams
On behalf of the Defendant : State Attorney - Ms Riba
Link no: 4207329
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[1] Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) at 113 F– 114 A.
[2] [2014] ZASCA 141 at paragraph [53].