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, JOHANNESBURG)
Case No: 20/38204
IN THE MATTER BETWEEN:
ADV JOHAN MALHERBE KILIAN N.O
In his capacity as Curator ad Litem to
G[…], A[…] PLAINTIFF
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
MOSTERT AJ
-2-
DELETE WHICHEVER IS NOT APPLICABLE
) REPORTABLE: NO
) OF INTEREST TO OTHER JUDGES: NO
) REVISED: YES
13/10/2025
DATE SIGNATURE
1. On the 21 st of October 2024 M odau J handed down an Order apparently
by agreement between the Plaintiff and the Defendant that the Defendant
is liable to compensate the Plaintiff for 100% of the agreed or proven
damages that A[…] G[…] (Identity number: 8[ …]) (hereinafter referred
to as “the Patient”) suffered as a result of the accident that occurred on
the 14th of March 1991.
2. On the 2 nd of June 2025 Manoim J handed down an Order to strike the
Defendant’s defence and authorised the Plaintiff to proceed to trial by
Default.
3. The application for Default Judgment came before this Court the week of
2 September 2025.
4. The Plaintiff in this matter is acting in his representative capacity as
curator ad litem for the Patient.
5. The basis of the Patient’s claim against the Defendant is an accident that
took place on the 14
th of March 1991 in Johannesburg where the Patient
was knocked over by an unidentified motor vehicle that failed to stop
after the accident. According to the Particulars of Claim as a result of the
collision the Patient suffered a severe brain injury with GCS 5/15.
6. The Patient was 9 years and 3 months old at the date of the accident and
is currently 42 years old.
-3-
7. When the Summons was initially issued the Plaintiff claimed
R1 500 000,00 in respect of estimated future loss of earnings and
earnings capacity and claimed a sum of R1 000 000,00 in respect of
general damages.
8. In the current Particulars of Claim the Plaintiff claims R14 561 136,00 in
respect of past loss and estimated future loss of earnings and estimated
future loss of earnings capacity based on an actuarial report by Algorithm
Consultants and Actuaries as well as a sum of R2 000 000,00 in respect of
general damages. The Plaintiff’s counsel brought an application during
argument to increase the sum of R2 000 000,00 to R3 000 000,00.
9. When the matter was argued the Plaintiff brought an application in terms
of the provision of Rule 38(2) to present evidence of experts on affidavit.
This application was granted.
10. The Plaintiff utilised the services of Dr Leon Fine (psychiatrist) as an
expert witness in the matter.
11. His conclusion is that the patient presents with having sustained a head
injury with a very significant organic brain damage. She has significant
ongoing deficits with memory, mood and personality, affecting her ability
to perform and enjoy her normally day of living and life amenities. She
revealed that her functioning level was in the intellectual disabled range
with global alteration in mental status, condition and highest integrated
function, and in all areas and affecting her ability to function normally.
As
-4-
a result of her brain damage she is functioning in the range of mental
retardation which can be considered as permanent and irreversible.
12. Trevor Reynolds who is a forensic clinical and neuro psychological
specialist concludes that his examination reveals severe neuro cognitive
impairments consistent with a profound traumatic brain injury, but with
some surprisingly relative preserved abilities, most notably with regards
to incidental visual learning and working memory for logical related
auditory / verbal material (Case lines 08-52).
13. He concludes that past loss of earnings is not material in the matter as the
Patient was a scholar at the date of the accident. Future loss of earnings
must be considered absolute as the patient does not have the cognitive or
behavioural capacity to be trained for, or gain and maintain employment
in anything other than especially protective employment. The realistic
prospect of accessing such employment is minimal.
14. The actuary utilised by the Plaintiff is G A Whittaker who assessed the
Patient when she was age 42. He assumed a normal life expectancy
namely an additional 35,94 years. He assumed that the patient would
have completed grade 12 and would have obtained a NQF 6 qualification.
However, both these conclusions are based on the contingencies of the
life expectancy of an HIV positive person and is open to severe doubt ,
and amounts to speculation.
-5-
15. For purposes of this Judgment it is accepted that the Patient has zero
capacity for future income or income capacity as a result of the injuries
she sustained in the accident.
16. It is possible to determine damages for loss of earning and earing capacity
at the date of the trial and not the date of delict. See in that regard Visser
& Potgieter The Law of Damages Third Edition , page 92. See also
General Accident Insurance Company SA Ltd vs Summers etc 1987
(3)SA577(A). See Muller vs Government of the RSA 1980 (3)SA970(T)
at 974 -975 – “The general rule is that damages must be assessed as at
the date of the wrong, although it may be that in the case such as the
present (where the Plaintiff’s only became aware of the wrong at the
later date when the damages may have been increased by the amount
of additional interest accrued) the time for the assessment of damages
may be the date when they got to know of the wrong.”
17. According to Visser & Potgieter page 465 there is not only one generally
accepted measure of damages for loss of earning capacity.
18. In Southern Insurance Association Limited vs Bailey 1984 (1SA98(A))
the Court accepted that the aim to calculate future loss of earnings and
earning capacity is to try and make an assessment by way of
mathematical calculation on the basis of assumptions resting on the
evidence. The validity of this approach depends of course upon the
soundness of these assumptions and these may vary from the strong
probable to the speculative.
-6-
19. Accordingly, it is appropriate in the instant case to evaluate the damage
that the Patient has suffered by due consideration to facts known even
though it is more than 30 years since the delict occurred.
20. Whittaker assesses past loss uninjured applying a contingency of 10%
leaving a value of R5 988 240,00. This according to the actuary is the
amount she is entitle d to for the period 14 March 1991 being date of
accident up to 1 September 2023 being t he calculation date, in total just
over 32 years.
21. I am of the view that given the contingencies of the case and particularly
the likelihood of the Patient having achieved a qualification anything
higher than NQF4 is optimistic . I value the past loss of income up to the
calculation date of R3 570 000,00.
22. Insofar as the Patient’s future loss of earnings and earning capacity is
concerned the actuary values the future income of the Patient uninjured to
be R9 685 759,00 less an 11.5 contingency of R1 113 862,00 leaving
future loss of income to be R8 571 987,00. In my view this is also an
over optimistic view of the contingencies in this case. The Patient is HIV
positive and of the necessity has a lower life expectancy. The aforestated
amount also does not take into consideration the fact that the Patient in all
likelihood would have had endured long periods of unemployment as a
result of child birth as well as not having qualification.
-7-
23. I consider an amount of R4 531 500,00 to be an appropriate amount for
loss of future income and earnings capacity.
24. The general damages that the Patient suffered is severe. Life dealt her a
cruel blow. The accident robbed the Patient of a normal life. Instead, she
has to go through life with severe intellectual disabilities. However, the
life she has is not without its rewards. As one factor she gave birth to
three children and is in the position to care with her life partner for at
least two of them. One possible way of assessing general damages would
be to postulate what a Court would have awarded in 1991 and extrapolate
the value of money at that given time up to today’s date. I am of the view
that the result will be the same . Accordingly, I award the Patient the sum
of R1 500 000,00 in respect of general damages and loss of amenities of
life.
25. I hand down the order enclosed herewith marked “X”.
_______________________
DNH MOSTERT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
This Judgment is handed down electronically by circulation to the Plaintiff’s Legal
Representative and the Defendant by email, publication on Case Lines. The date for the
handing down is deemed 13 October 2025
-8-
Date of appearance: 4 September 2025
Date Judgment delivered: 13 October 2025
Appearances
For the Plaintiff: Adv Danie Combrink / Adv Anton Louw
Instructed by: Erasmus De Klerk Inc
For the Respondent: Ms Moyo / Ms Booysens (RAF State Attorney)