SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2567/2023
In the matter between:
F[...] J[...] K[...]
on behalf of E[...] C[...] K[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
_______________________________________________________________
Coram: Van Zyl, AJ
Heard: 26 March 2025, 25 August 2025, 24 October 2025
Judgment: 28 November 2025
Summary: Minor involved in motor vehicle collision - claim against Road
Accident Fund for past medical expenses, loss of earning capacity, and general
damages
ORDER
1. The defendant shall pay to the plaintiff the sum of R3 588 495.10,
comprising of:
1.1 past medical expenses in the amount of R125 888.60;
1.2 future loss of earnings / earning capacity in the amount of
R3 362 606.50; and
1.3 general damages in the amount of R800 000.00 less the
interim payment of R700 000.00, that is, R100 000.00.
2. The defendant shall pay interest on the sum of R3 588 495.10 at the
prevailing rate of interest, calculated from 14 days after date of
judgment to date of final payment.
3. The defendant shall pay the plaintiff’s costs of suit on the High Court
scale, including the qualifying expenses of the expert witnesses in
respect of whom expert reports have been delivered, as well as
counsel’s fees taxed on Scale B in respect of work done after 12 April
2024.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. This action entails a claim pursuant to the provisions of the Road
Accident Fund Act 56 of 1996 (“the Act”).
2. The plaintiff claims damages on behalf of his minor son, E[...]. E[...]
was involved in a motor vehicle accident on 13 August 2021 next to the
showrooms of McCarthy Toyota, Table View. He had been standing in
front of the showrooms, waiting for his mother, when the insured vehicle
ploughed into him.1 He was 12 years old at the time.
3. As a result of the collision, E[...] suffered serious injuries, including a
fracture of the right distal tibia and fibula; a fracture of the right distal
radius; a fracture of the left wrist and thumb; a seroma of the left thigh;
and serious psychological sequelae, including post -traumatic stress
disorder (PTSD), anxiety, and depression.
4. The defendant conceded the merits. This court therefore has to
consider the quantum of the various heads of damages claimed, in
particular past medical expenses incurred in respect of the E[...]’s
treatment, his future loss of earnings or earning capacity; and general
damages.2
5. On the trial date first allocated in March 2025, t he defendant indicated
that it wished to appoint its own industrial psychologist, and the matter
was postponed for that purpose. The appointment never occurred, but
the parties did settle or partially settle certain of the heads of damages.
In respect of future medical expenses, the defendant furnished an
undertaking in terms of section 17(4)(a) of the Act, to compensate E[...]
for 100% of the costs of future accommodation in a hospital or nursing
home, or treatment of or rendering of a service or supplying of goods
arising out of the bodily injuries sustained in the accident. This aspect
has therefore been settled.
6. The defendant also paid, as an interim payment, the sum of
R700 000.00 towards general damages. The quantum of general
1 At the commencement of the trial the court was provided with security video footage of
the collision which showed the graphic details of what had happened.
2 It is common cause that Ethan’s injuries qualify as serious, as contemplated in sections
17(1) and 17(1A) of the Act.
damages was therefore partially settled, and it needs to be determined
whether an additional payment is warranted in relation thereto.
7. The plaintiff made application, at the commencement of trial, for an
order that the evidence of various witnesses , mostly expert witnesses,
be adduced by way of affidavit under Rule 38(2) and admitted into the
record. The application was unopposed, and the order sought was duly
granted in respect of the following witnesses: Ms Tanusha Tia Hoosen ,
team leader at Discovery Health Medical Scheme; Ms Elize Burns -
Hoffman, occupational therapist; Dr Neil Kruger , orthopaedic surgeon;
Dr Larissa Panieri-Peter, specialist forensic psychologist; and Mr Daniel
Lionel Saksenberg, actuary.
8. Industrial psychologist, Mr Bernard Swart, gave oral evidence at the
trial, as did E[...]’s father, the plaintiff.
9. The defendant called no witnesses, and closed its case upon closure of
the plaintiff’s case.
10. In what follows, I briefly discuss the evidence given on the plaintiff’s
behalf. I shall thereafter consider the issues for determination in the
light of the applicable legal principles.
The evidence for the plaintiff
E[...]’s father, Mr K[...]
11. Mr K[...] confirmed the details of the collision. E[...] was 12 years old
and in Grade 6 when it occurred. The collision, and its aftermath, was
by all accounts a harrowing experience. The insured driver was an
elderly lady, 93 years of age at the time.
12. E[...] was transported to and treated in the trauma unit of the Milnerton
Mediclinic, whereafter he was transferred to the orthopaedic department
for further care. He remained in hospital for two to three days for
observation, and was provided with painkillers . He had to undergo
surgery for the tibia / fibula and radius fractures. Both arms were
placed in casts, and pins were inserted at the fracture sites of his legs.
He was unable to bend either his legs or his arms.
13. Mr K[...] explained the trauma of having to transport E[...] home from
hospital. The family owned a Hyundai Tucson motor vehicle and during
the journey home, E[...] was constantly looking out of the back window,
panicking and screaming when he saw vehicles approaching from
behind.
14. An important consideration for th e family was that they wanted the
insured driver to apologise for what had happened, given the emotional
impact the accident had had on E[...]. Mr K[...] attempted to contact
her, and although he managed to get hold of her daughter, no apology
was ever given.
15. E[...] was initially placed in the room he shared with his brother. They
shared a double bunk bed but the difficulties with mobility, given his
plaster casts, necessitated the hiring of a hospital bed. This was placed
in the lounge, where E[...] spent the first few months of his recovery.
The circumstances were difficult, because he had no privacy . His
mother had to tend to his personal needs and bathe him using a bed
bath, which was embarrassing for a teenage boy . When family
members visited, and E[...] needed to attend to ablutions, this would
make the situation even more awkward and embarrassing.
16. According to Mr K[...], E[...] had “ taken a knock ” as a result of the
collision. He withdrew into himself and did not want to speak. Prior to
the accident he was outgoing and an “adrenaline junkie” who loved dirt-
biking. Mr K[...] also noticed that during the first few months post -
collision, E[...] had intense internal anger, resentment , and explosive
outbursts. This was reported to the occupational therapist, Ms Burns -
Hoffman, who discussed it in her report.
17. Mr K[...] testified that he is an operations director for S[...] C[...], a
company which provides services in the mining and petrochemical
industry t o other companies, such as De Beers. His current income,
which includes a vehicle allowance, amounts to approximately
R220 000.00 per month.
18. He testified that he has been married for 21 years . He and his wide
have three children. The eldest son is 21 years of age, studying IT and
Engineering at the University of Stellenbosch . Their second child, a
daughter, is 17 years old and currently in Grade 11. She wants to study
law. E[...] is the youngest. He is currently 16 years old and in Grade 10.
It is fair to say that the parents hold high expectations for their children.
19. Mr K[...] referred to the fact, and it appears from the expert evidence on
record that, a lthough E[...] wrote the year -end Grade 6 exams (in the
year in which the collision occurred), an average mark was taken as his
final marks, rather than the specific exam results. E[...] battled with
continuing with his Grade 6 studies via home schooling and tutoring,
due to the need to take medication for pain , and his depressed mood.
E[...] cried often, and remained angry with the insured driver.
20. At the start of the Grade 7 school year there was , for various reasons,
no longer homeschooling or private tutoring, which meant that E[...] was
academically lagging. Mr K[...] expressed the view that E[...] had missed
out on the fundamentals of Grade 7 maths, given the injuries and time
out of school. A maths tutor was re appointed, which was helpful , but
even though E[...] tried his best, it was clear that he struggled. Mr K[...]’s
evidence was that prior to the collision, E[...] had progressed well at
school. The collision caused him to miss three quarters of a school
year. This was exacerbated by the Covid outbreak, and he has not
been the same since.
21. In high school, E[...] switched from pure mathematics to “maths
literacy”. He had previously wanted to become a veterinarian or a bush
pilot in the game reserves, but with the school marks that he currently
attains, he would have to consider another occupation.
22. In respect of sporting activities, Mr K[...] explained that E[...] had loved
sport prior to the collision , having been captain of the first rugby team.
After the collision, for the remainder of Grade 6 , he did not play rugby
again, which he found frustratin g. E[...] developed a seroma 3 on his
upper left thigh, which is unsightly and causes him embarrassment .4 It
took a while for E[...] to become mobile again. In 2022, whilst in Grade
7, E[...] was initially scared to take risks, even minor ones. That is still
the case. The seroma impacts his movement and self -confidence. He
does not want to wear shorts for fear of people staring at him. The leg
is very sensitive to any touch.
23. Although E[...] still participates in sport, his confidence is low, and the
seroma remains problematic. He currently plays rugby in the B team .
Mr K[...] is of the view that the coach indulges him by putting him on the
reserve team for the first team, but he never goes on to the field to play.
Mr K[...] also noted that when E[...] plays in the B team, his teammates
do not want to pass him the ball to him as he can not move fast, and is
hesitant to tackle.
3 A seroma is a collection of fluid s that builds up under the surface of the skin. It may
develop after a surgical procedure, most often at the site of the surgical incision or
where the tissue was removed.
where the tissue was removed.
4 A photograph is contained in Dr Kruger’s addendum report, depicting the nature and
extent of the seroma.
24. At home, a lthough E[...] was given a puppy, he does not play with the
dog because of t he pain he suffers from the seroma. The seroma has
twice before been drained, the last occasion being in August 2024. The
doctor who did so referred E[...] to a plastic surgeon, who will be
required to attend to a n invasive operation to have the seroma
removed. Although motivation was provided to the medical aid to cover
the operation, this has been declined because the procedure is
regarded as cosmetic in nature. The defendant has , however, now
given an undertaking under section 17 of the Act , and the surgeon in
question has been asked to furnish a quotation for the defendant’s
consideration.
25. Currently, travelling in a motor vehicle is fine, although E[...] does still
become panicky at times. He refuses to cross the road on his own, and
remains very hesitant. He recently received a bicycle, but does not
want to ride outside of the yard. When he plays hockey in the road with
his sister, E[...] wants his father to stand and watch while they do so.
26. As a parent, Mr K[...] feels that he has failed E[...], given the financial
pressure the family is under for various reasons. They have not been
able to provide E[...] with the necessary psychotherapy and medication,
and his treatment has therefore not been optimal.
27. The impact of the collision on the family i s that they are divided : given
that the parents have taken so much time to care for E[...], his siblings
feel left out , and this has led to some jealously and unhappiness
between them. Although Dr Panieri-Peter recommends therapy for the
family, Mr K[...] feels that his wife and E[...] are in more serious need of
psychotherapy given what they had gone through, if regard is had to the
contents of the video footage of the collision.
28. Overall, E[...] is not as confident as he used to be prior to the collision.
He overthinks things and doubts himself , and still has outbursts of
anger. He blames the insured driver as, in his view, she has “ ruined his
life”. He has mentioned that he does not “want to be around ” any
longer. E[...] tries his best, but according to Mr K[...] the accident has
had a far-reaching impact on him and, for that matter, on the entire
family.
Mr Swart, industrial psychologist
29. Mr Swart confirmed that for the purposes of his first report, he perused
and considered the various medico -legal reports prepared by the other
experts, as well as other documentation such as school reports and
clinical notes. E[...] was accompanied by his parents to his first
consultation with Mr Swart.
30. He also confirmed in his evidence the summaries provided in his report
in respect of E[...]’s injuries and his present complaints. He confirmed
the extended family history in respect of qualifications and employment.
At the time of his co nsultation with him , Mr K[...] was earning
R184 000.00 per month, plus 3% of profit -sharing and a 13 th cheque.
This has increased to about R200 000.00 as stated by Mr K[...] in his
evidence. Mr Swart testified that it is important to refer to the occupation
of parents because, when dealing with a minor, the parents’ positions
(as well as those of siblings) are used as guidelines, as are those of
siblings.
31. According to Mr Swart, E[...] had indicated that he wanted to become a
veterinarian, engineer, or pilot. He was, however, a very young boy at
the time. He currently struggles academically and at the time of
compiling the report, Mr Swart was of the view that E[...] would probably
have to repeat Grade 8. E[...] struggles, in particular, with mathematics.
32. In his first report , Mr Swart described E[...]’s school performance in
Grades 5 to 8. His school reports show a decline in academic
performance. The decline from Grades 5 and 6 to Grade 8 is marked,
and in Grade 8 E[...] failed mathematics in all three academic terms. He
also failed English and Afrikaans. He was on the cusp of failing history
in two consecutive academic terms, and based on the abysmal results
in English, Afrikaans , and mathematics, he concluded in his report that
E[...] would probably fail Gra de 8. E[...] was however proverbially
“pushed through ” to Grade 9 , but on the basis that he now ha d to
continue with maths literacy.
33. Mr Swart compiled an addendum report in May 2025 to update the
information where necessary for purposes of the trial . In this report, he
dealt with E[...]’s Grade 8 marks for the 2023 year, as well as his Grade
9 marks for 2024 and the first term of Grade 10. During his evidence in
chief, Mr Swart remarked that E[...]’s report card for the second term of
Grade 10 was also obta ined, having just become available. Although
there has been a substantial improvement in mathematics literacy, his
report still shows a general decline in his marks, if Grade 10 terms one
and two were compared. The substantial increase in the mathematics
marks was due to a tutor be ing appointed again . Given that E[...] was
failing English and Afrikaans, the term two marks were indicated to be a
“fail”, and Mr Swart concluded that he would probably fail the grade.
34. Mr Swart also did a comprehensive psychometric assessment of E[...].
He explained that this was something which he generally does not do,
except in certain circumstances, such as where there is underlying
depression (as in E[...]’s case), and when the surrounding history and
information points to a person needing urgent intervention.
35. Mr Swart postulated a probable career path for E[...]. In opining on an
uninjured career path, Mr Swart confirmed that he takes into account
the fact that both parents are in skilled occupations, t he fact that neither
of E[...]’s siblings has failed a grade, and their current and future study
paths: E[...]’s brother is studying engineering at Stellenbosch, and his
sister is doing well at school. Given that E[...] is so young, an industrial
psychologist would promote a career option which is generic, as it is
difficult to postulate a specific career option. He would also consider the
earnings of the parents as a guideline , and a comparison is then made
using information at hand. Mr Swart used the Pater son career
statistics, obtained from the Robert Koch Quantum Yearbook, as a
generic base for E[...]’s uninjured career path. The career path is
postulated on a balance of probabilities, given all of the available
information.
36. Mr K[...] falls within the corporate sector as regards his salary and work
position. Against this background, Mr Swart is of the view that E[...]’s
uninjured career path would likely have been as follows: he would have
completed Grade 12 by yearend 2027 , and a thre e-year tertiary
education by yearend 2030. He would then have attempted to enter the
open labour market in 2031 , possibly experiencing difficulty in doing so
as a result of the high level of unemployment in South Africa . He might
have been unemployed for up to six months, until mid-2031. E[...] might
have secured employment in the general open labour market by mid -
2031. By utilizing the Koch Quantum Yearbook values (2023 edition),
E[...] could then have progressed as follows:
36.1 Entering the general open labour market at Paterson B3 and
earning R203 000.00 per annum (basic salary lower quartile).
36.2 Progressing to Paterson B5 after two to four years and earning
R376 000.00 per annum (basic salary upper quartile).
36.3 Progressing to Paterson C2 after two to three years and earning
R550 000.00 per annum (total package median).
36.4 Progressing to Paterson C3 after two to four years and earning
R764 000.00 per annum (total package upper quartile).
36.5 Progressing to Paterson C4 after two to four years and earning
R908 000.00 per annum (total package upper quartile).
36.6 Progressing to Paterson C5 after two to four years and earning
R1 057 000.00 per annum (total package upper quartile).
36.7 Receiving annual earnings inflationary increases.
36.8 Retiring at 65 years of age.
37. In respect of E[...]’s injured career path, Mr Swart explained that one
looks at medical opinion, the school reports, the personality assessment
he carried out, and the psychological influence of the injuries on his
prowess and ability to perform. Mr Swart confirmed in his addendum
report that he had considered the latest school records but that, in
effect, the pre - and post-morbid career paths as suggested in his first
report remains unchanged. In his view, the best way to deal with E[...]’s
loss of earning capacity would be by applying a contingency differential,
that is, by applying a significantly higher than usual contingency on the
proposed post-morbid career path, as opposed to the pre-morbid career
path, where a lower contingency should apply.
38. In respect of what contingency differential should be applied, he
acknowledged that this is the Court’s prerogative.5 Given the pre - and
post-morbid information he had highlighted in his evidence in chief, he
5 Phalane v Road Accident Fund [2017] ZAGPPHC 759 (7 November 2017) para 3.
stated that although he could not specify the exact percentage
differential, the post -morbid career path should have a contingency
applied which is significantly higher than the contingency applied to the
pre-morbid career path.
39. In cross -examination, Mr Swart confirmed that he considered the
general principle that minors’ income would exceed that which their
parents achieved in the latter’s’ career progressions. He also defended
E[...]’s career progression as postulated, stating that this was extremely
conservative if one looked at the final progression at the end of his
career, especially since at the high end of E[...]’s uninjured career, he
would still be earning less than 50% of what his father was currently
earning.
The evidence presented on affidavit
40. I briefly refer to the evidence admitted into the record by way of affidavit
under Rule 38(2).
41. Ms Hoosen confirms that she is employed as a team leader of the
Discovery Medical Scheme, and confirms payment of the past medical,
hospital and related expenses incurred, pursuant to the injuries
sustained by E[...] in the collision . The costs were reasona ble, and the
treatment provided was necessary. She also states that these past
medical expenses are related to medical scheme claims submitted to
Discovery Medical Scheme from the date of injury, as per the claims
submitted, as billed by the various relev ant healthcare practitioners and
other relevant service providers. The sum paid by Discovery Medical
Scheme amounted to R125 880.60.
42. Ms Burns-Hoffman, occupational therapist, discusses the impact of the
seroma. Further, although E[...] has regained full mobility and no longer
requires personal assistance or support aids to enable him to move
around, it appears that he struggles with deficits in muscle strength in
the left dominant hand and the right lower limb; educational challenges
and the possibility of not advancing with his own age group (in this
regard Mr Swart provided substantial evidence); unresolved
psychological trauma around a multitude of motor vehicle accident -
related sequelae, including anger, frustration, loss, feeling left out, fear ,
and an alleged shift in family dynamics. These are all aspects
confirmed in Mr K[...]’s evidence.
43. Dr Kruger , orthopaedic surgeon, states that the injuries and the
treatment thereof resulted in large periods away from school . This has
had a knock -on effect whic h E[...] is still trying to catch up. E[...] has,
largely, physically healed now, but struggles with lasting effects. These
include pain in his right ankle , and a residual valgus deformity of his
ankle which, should it not correct by itself, will require surgery in future.
Most significantly, he has suffered a left large thigh soft -tissue injury
which has resulted in a post-traumatic seroma that, despite drainage on
two occasions, still persists and becomes enlarged when he exercises.
This has prevented from him being as active as he used to be . E[...]
requires an open debridement of the seroma and layered closure, to
ensure that it does not return. The operation has an 80% to 90 %
chance of success.
44. Dr Panieri -Peter, psychologist, sets out E[...]’s personal and
educational, medical and psychiatric history prior to the collision, the
nature of the collision and the treatment received, as well as the
relevant medical psychiatric and educational history after the collision.
E[...] still has symptoms of depression. He was o bjectively sad during
the assessment, and indicated that he feels sad and upset. He quickly
becomes irritable and angry and has considerable rage towards the
becomes irritable and angry and has considerable rage towards the
insured driver. He has temper outbursts, often struggles to sleep , and
is very self -conscious about his seroma, which is painful ad
uncomfortable.
45. She states that after the collision E[...] developed an acute stress
reaction, which has developed into PTSD , with symptoms of anxiety
and depression. The injuries occurred during early adolescence, an
important developmental time whe n the body changes, and when an
emerging sense of self takes place . Identities are fragile and in
development.
46. E[...] has not had any psychiatric or psychological treatment. Urgent
intervention by a clinical psychologist is required as he tries to integrate
his feelings, his sense of self and identity, and his unprocessed anger ,
and as he tries to move past the impact of the collision to a more
functional state. She also proposes therapeutic intervention for the
family as a whole, given the difficulties they have experienced.
47. Mr S acksenberg, actuary, did a calculation of E[...]’s possible career
path based on Mr Swart’s first report. He sets out the various
methodologies and actuarial assumptions utilized, and applie s a 20%
premorbid, as well as a 40% post-morbid contingency. The calculations
were done mindful of the effect of the statutory cap on future loss of
earnings:6
“[7] … In this matter, following the approach of actuaries over decades, Mr
Morris used the assessments of industrial psychologists as to the career path
likely to have been followed by Ms Sweatman, her probable remuneration,
prospects of promotion, working lifespan, retirement and other factors that
might have affected her income stream over the years. He then calculated the
present estimated value of the future income that she would have earned,
taking into account the net capitalization rate, which in turn has regard to the
expected investment return. From the amount calculated he made deductions
6 Road Accident Fund v Sweatman 2015 (6) SA 186 (SCA) paras 7-8.
on the basis of future inflation rates, for taxation and li kely changes in the
rates of taxation, and, importantly, took into account accepted life tables
reflecting mortality rates.
[8] The second step taken was to ascertain what difference the injury and
disability arising from the collision made to Ms Sweatman: to determine the
estimated present value of her future income stream in her injured and
disabled state. Once that calculation had been done the two amounts were
adjusted having regard to the contingencies of life: any factor that would
influence her life and earning capacity – the hazards of life. The amount
calculated in respect of the income stream in the injured state was then
deducted from the amount she would have earned but for the injury, and that
represented the estimated present value of Ms Sweatm an’s loss. The
limitation introduced by the amendment was then compared with the actual
loss: if the actual loss was less than the annual loss – the limit or cap – then
the Fund would be liable for the actual loss. If it exceeded the limit then only
the amount which was gazetted before the date of the accident (the annual
loss) would be payable.”
48. On the basis of this approach, the cap does not apply in the present
case.
49. I turn to a consideration of the issues for determination against this
background.
Loss of earning capacity
The expert evidence on record
50. The defendant appointed no experts in this matter , even though it had
the opportunity to do so .7 This court is thus reliant on the opinions
7 See Bheme v Road Accident Fund [2025] ZAMPMBHC 43 ( 29 May 2025) para 18: a
challenge to the content of an expert report in circumstances where no rebutting
evidence has been provided, should be dealt with with caution and not merely at a
defendant’s asking, who had the opportunity of leading evidence, and elected not to do
so.
provided by the experts who adduced evidence by way of affidavit, as
well as Mr Swart’s oral evidence.
51. It has been held 8 that the functions of an expert witness are threefold.
Where they have themselves observed relevant facts that evidence will
be evidence of fact and admissible as such. They also provide the court
with abstract or general knowledge concerning their discipline that is
necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of the current state of knowledge and
generally accepted practice in the field in question. Although such
evidence can only be given by an expert qualified in the relevant field, it
remains essen tially evidence of fact on which the court will have to
make factual findings. It is necessary to enable the court to assess the
validity of the opinions that they express. They give evidence , in
addition, concerning their own inferences and opinions on th e issues in
the case, and the grounds for drawing those inferences and expressing
those conclusions.
52. An expert witness is there to assist the court, and must thus be neutral.9
He or she must provide the court “with as objective and unbiased an
opinion, based on his expertise”, and is “not a hired gun who dispenses
his expertise for the purposes of a particular case”. 10
53. In the heads of argument delivered on its behalf, the defendant
criticises the reports provided by Dr Kruger, Dr Panieri -Peter, and Ms
Burns-Hoffman, mainly for making reference to and discussing E[...]’s
school performance and thus drawing conclusions which, according to
the defendant, fall outside of the scope of their respective fields. These
points were not raised at the time when the experts’ evidence was, by
agreement between the parties, admitted by way of affidavit, and they
8 AM and another v MEC for Health 2021 (3) SA 337 (SCA) para 17.
9 Stock v Stock 1981 (3) SA 1280 (A) at 1296F.
9 Stock v Stock 1981 (3) SA 1280 (A) at 1296F.
10 Schneider NO and others v Aspeling and another 2010 (5) SA 203 (WCC) at 211J –
212B.
were not canvassed in cross -examination. A consideration of the
relevant reports shows, in any event, that these witnesses discuss the
factual narrat ive of E[...]’s progress, or lack thereof, at school, in the
context of his injuries and their consequences. They do not seek to
make definitive educational and career recommendations arising
therefrom for the purposes of E[...]’s claim for loss of earnings or
earning capacity.
54. Mr Swart, on the other hand, the only industrial psychologist giving
evidence in this matter , is independent, has based his opinion on
properly obtained substantiated facts and information, and provided an
opinion as to how E[...]’s future career progression would be influenced,
given the sequelae, inclusive of the psychological sequelae, of the
collision.
55. The defendant criticises Mr Swart too, arguing that his evidence “cannot
usurp that of an Educational Psychologist ”, and that the Court “ should
not allow itself to be hoodwinked by an industrial psychologist who sees
fit to interpret the minor’s available school reports with a view to
corroborating the Plaintiff’s evidence that the minor has suffered a
decline in his academic per formance as a result of the injuries under
consideration.”
56. I did not understand Mr Swart as doing, or attempting to do, any
hoodwinking. He duly considered the facts relating to Erhan’s progress
as obtained from the plaintiff and as set out in the other expert reports.
There is no fault to be found with the evidence of the other expert
witnesses, submitted by way of affidavit. 11 As indicated, the defendant
11 When confronted with expert reports, the court is guided by the reasoning in Road
Accident Fund v Zulu [2011] ZASCA 223 (30 November 2011) para 14: what is
required in the evaluation of expert evidence is to determine whether, and to what
extent their opinions advanced are founded in reasoning.
did not in the course of the trial point take issue with those reports. 12
The logical conclusion to be drawn from these reports as a whole is that
the consequences of the collision had a detrimental impact on E[...],
both physically and psychologically.
57. E[...]’s results at school have undoubtedly dropped after the collision.
He has not received any proper medical treatment, particularly in
respect of psychological intervention. The outcome of his p oor
academic results will no doubt be that he will no longer have the wide
scope of opportunities for further training or studies he would have had,
had the collision not occurred and had his school results not suffered as
a result:13
“[23] The conclusions by the experts set out in their reports referred to
above, are properly motivated expert opinions which were admitted by the
Respondent.
[24] It is a matter of logical reasoning that all the factors mentioned by the
experts and summarized …, will probably result in future in a reduc tion of the
Appellant’s patrimony (earnings) having regard to the injuries, in comparison
to what he would have earned, for example, due to less incentive
remuneration, delays in promotion and/or career progression, lower career
ceiling etc, all as a resul t of lower productivity. The Appellant’s loss may not
be calculable according to the method proffered in the matter of Prinsloo v
Road Accident Fund 2009 SA 406 (SE) …, but it can be quantified applying
different contingencies (a higher post -accident contingency) which method is
applied on a daily basis in the courts over many years.
[25] Having regard to the facts emanating from the various expert reports
referred to above there is a clear nexus between those facts and the
conclusions reached.’”
58. I accordingly accept that t here is a loss of earning capacity. The
12 The court remains the final arbiter: IM v Road Accident Fund 2023 (1) SA 573 (FB) para
12 The court remains the final arbiter: IM v Road Accident Fund 2023 (1) SA 573 (FB) para
21, and see Twine and another v Naidoo and another [2018] 1 All SA 297 (GJ) para 18.
13 Spamer v Road Accident Fund [2018] ZAGPPHC 608 (20 April 2018) paras 23 -25 (my
emphasis).
defendant argues that, in that case, the facts of this case lend
themselves to compensation by way of a nominal lump sum payment as
contemplated in Roxa v Mtshayi:14
“While evidence as to probable actual earnings and probable potential
earnings (but for the injury) is often very helpful, if not essential, to a proper
computation of damages for loss of earning capacity, this is not invariably the
case. In the present ins tance the imponderables were vast. The Court had to
consider the position of a young child struck down almost in infancy. It was
virtually impossible to foresee what he would do in life or to foretell what he
would have done had he not suffered the injury. As to the actual future, no one
can say what work he will be able to carry out after he leaves school and later
when he becomes an adult; what effect his disabilities and the possibility of
behavioural problems will have upon his employment and employabil ity;
whether he may not end up in some form of institution, and so on. As to the
potential future, he was so young when the injury occurred that any enquiry as
to what type of working career he might have followed must amount to pure
speculation. When one further considers that the working period under
consideration stretches some 30 or 40 years into the future, it becomes clear
that any attempt at an actual calculation of loss of future income would be a
fruitless exercise. The trial Judge took a broad vie w of the situation and
awarded a globular amount which he considered appropriate in the
circumstances to compensate Boy -Boy for all that he had lost, including
diminished earning capacity. I remain unpersuaded that this was an incorrect
approach.”
59. The def endant does not suggest, however, what such a lumpsum
should be, and on what basis it should be preferred over the reasoned
approach taken by Mr Swart and given effect to in the actuarial
calculations. In Roxa15 the injured child was 7 years old at the time of
calculations. In Roxa15 the injured child was 7 years old at the time of
the accident, and the re was no evidence presented in relation to the
plaintiff’s loss of earning capacity:
14 1975 (3) SA 761 (A) at 769G–770A (my emphasis).
15 Roxa supra at 769E-F (my emphasis).
“In attacking the award of R17 000 appellant's counsel did not suggest that the
trial Judge had in an y way misdirected himself in regard to the evidence. He
merely submitted that about half the award must be taken to relate to future
loss of income; that there had been no attempt to present evidence, such as
evidence of the relative earnings of a simple l abourer and, say, a bus -driver
(the occupation of Boy -Boy's father), in support of such a claim for loss of
future income; that, accordingly, respondent had failed, in this respect,
to discharge the onus resting upon him; and that the Court should have mad e
no award or, at least, no more than a nominal award, on this score.”
60. The situation is different in the present case. Mr Swart’s evidence in
respect of the approach followed by him cannot be faulted. It seems
sensible that , given E[...]’s tender age, any future loss of earnings or
earning capacity would best be addressed by applying a contingency
differential to a pre -morbid established career path. His evidence was
clear that this would be a generic career path based on the factors
mentioned in this evidence and the relevant Paterson scales , given that
it is uncertain which specific occupation E[...] would have obtained in
the uninjured state. The exercise is by its nature speculative.16
61. One of the ways to test the reasonableness of Mr Swart’s opinion is to
compare the maximum figure he states E[...] would have earned in the
uninjured state once he reaches his highest level of functioning and/or
qualification. This would have E[...] progressing to the Paterson C5
level, in which he would have earned R1 057 000.00 per annum, being
a total upper quartile package. This income, if attainable in his 40s, is
still substantially less than the total earnings which E[...]’s father earns
at age 53.
16 Road Accident Fund v Zulu [2011] ZASCA 223 (30 November 2011) para 10: “It has to
16 Road Accident Fund v Zulu [2011] ZASCA 223 (30 November 2011) para 10: “It has to
be borne in mind that an enquiry into damages for loss of earning capacity is of its
nature speculative. The court below had to determine the issues on predictions based
on facts.
62. The defendant points out that E[...] was, even prior to the collision, an
average learner. Mr Swart takes into account E[...]’s performance at
school prior to the collision, and does not suggest that E[...] would have
earned nearly as much as his father is currently earning. This is , in my
view, an objective and fair approach, based on the relevant factors.
Despite the defendant’s criticism I did not gain the impression that Mr
Swart was biased. He came across as thorough and credible, and his
evidence was not undermined in cross-examination.
The applicable contingencies
63. Contingencies are the hazards o f life that normally beset the lives and
circumstances of ordinary people , and should therefore, by its very
nature, be a process of subjective impression or estimation rather than
objective calculation.17
“[17] … Contingencies for which allowance should be made, would usually
include the following:
(a) the possibility of illness which would have occurred in any event;
(b) inflation or deflation of the value of money in future; and
(c) other risks of life such as a ccidents or even death, which would have
become a reality, sooner or later, in any event … .
[18] In the Quantum Yearbook (by Robert Koch, 2017 Edition, p 126) the
learned author points out that there are no fixed rules as regards general
contingencies. However, he suggests the following guidelines:
‘Sliding scale: Yz% per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age…
Normal contingencies: The RAF usually agrees to deductions of 5% for
past loss and 15% for future loss, the so-called normal contingencies.’"18
64. Mr Swart’s evidence is that a contingency differential approach should
be followed. This means that a specific contingency should be applied
17 Shield Ins Co Ltd v Booysen 1979 (3) SA 953 (A) at 965G-H.
18 Phalane v Road Accident Fund [2017] ZAGPPHC 759 (7 November 2017) paras 17-18.
to the pre-morbid career path, and a substantially higher co ntingency to
the post -morbid career path. Both career path s are in essence the
same, given E[...]’s age , which makes it difficult to predict a career
progression. What does differ are the different contingencies applicable
pre- and post -morbidly respectiv ely, which then equates to the
contingency differential, and which would amount to E[...]’s future loss
of earnings or earning capacity.
65. The evaluation of the amount to be awarded in this respect does not
involve proof on a balance of probabilities. It is a matter of estimation ,
and the court has a wide discretion .19 In the current matter, there is an
uncontested actuarial calculation before the court, based on Mr Swart’s
proposed career progression. Even though the actuary has applied a
20% and 40% conti ngency on the future uninjured and future injured
career paths respectively, the court is not bound by this , but is at liberty
to consider the totality of the evidence in deciding which contingencies
to apply.
66. Having considered the issue, and g iven Mr Swart’s evidence that a
substantially higher contingency should be applied in the injured
scenario, I agree with the plaintiff’s counsel’s submission that a
contingency differential of 30% would properly address E[...]’s loss of
earning capacity, inclusive of all the uncertainties applicable to both the
uninjured and injured career progression. A future uninjured
contingency of 20% , and a contingency of 50% in respect of the future
injured career path, would equate to a 30% differential. This means
that the final calculation in this respect will be as follows, with reference
to the actuarial report on record:
66.1 Future uninjured earnings: R11 208 687.00 x a future uninjured
contingency of 20% = R8 966 950.00.
19 M S v Road Accident Fund [2019] ZAGPJHC para 84, and see Bheme supra para 25.
66.2 Future injured earnings: R11 208 687.00 x future injured
contingency of 50% = R5 604 343.50.
66.3 The total calculated future loss of earnings / earning capacity:
R8 966 950.00 less future injured earnings of R5 604 343.50 =
total loss of earnings / earning capacity (based on a 30%
contingency differential) of R3 362 606.50.
Past medical expenses
67. The judgment of a full bench appeal of this Division which was argued
on 12 September 2025 in respect of whether th e defendant should pay
past medical expenses paid by the plaintiff’s medical aid scheme, is
currently awaited.20
68. As the law stands, however, the defendant is liable to pay those
expenses. There are various decisions in this Division to this effect. 21
In any event, in respect of E[...]’s past hospital and medical expenses,
the defendant generally pleaded a “no knowledge” defence in its plea,
and led no evidence in rebuttal of the affidavit evidence adduced by Ms
Hoosen. The defence that the defendant is not li able to pay for past
medical expenses where medical aid schemes have paid on behalf of
the plaintiff , was never formally raised in the pleadings in the present
matter.
20 Road Accident Fund v Nicolaas Johannes van Wyk , case no. A186/2025 (court a quo
case no. 11691/2020).
21 See, for example, Mooideen v Road Accident Fund , unreported WCHC judgment of
Davis J under case no. 17737/2015, delivered on 11 December 2020 ; Van Tonder v
Road Accident Fund [2023] ZAWCHC 305 (1 December 2023) ; Jaffer v Road Accident
Fund [2025] ZAWCHC 136 (20 March 2025); Basson v Road Accident Fund [2025]
ZAWCHC 229 (30 May 2025); Moss v Road Acci dent Fund [2025] ZAWCHC 110 (17
March 2025)
69. In Esack NO v R oad Accident Fund 22 the applicable principle was
stated as follows:
“To conclude on the issue, the deceased incurred past medical and hospital
expenses. These were paid by the deceased’s medical -aid scheme ,,, On the
application of the common law principle of res inter alios acta, the defendant is
liable to comp ensate the plaintiff as such payment is a matter between the
deceased and his medical aid-scheme. Having regard to all of the above, I am
satisfied that the plaintiff’s claim for past hospital and medical expenses must
succeed.”
70. There seems to me to be no reason to deviate from this approach in
respect of the plaintiff’s claim, which has long awaited determination at
trial and which falls squarely within the a pplicable legal principles as
they currently stand.
General damages
71. The purpose of an award of general damages is to compensate a victim
for the pain, suffering, shock, and discomfort suffered as a result of a
wrongful act. 23 The courts have consistently preferred a flexible
approach, determined by the broadest general con siderations,
depending on what is fair in all the circumstances of the case.24
72. In De Jongh v Du Pisanie NO 25 the Supreme Court of Appeal dealt with
issues such as fairness and the Court’s discretion in the context of
previously decided cases of similar fa cts. The comparison is not a
mechanical process because the court must still exercise its discretion.
Other cases only serve as broad guidelines to indicate a pattern of
previous awards based on the facts of each case. On the fairness of the
22 2025 (4) SA 201 (WCC) para 19.
23 TPN v Road Accident Fund [2024] ZAKZDHC 37 (11 June 2024) para 17.
24 See Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).
25 2005 (5) SA 457 (SCA) paras 63-64.
award the Supr eme Court of Appeal cited, 26 with approval, the following
passage from Pitt v Economic Insurance Co. Ltd 27 where the following
was stated 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 it must
not pour out largesse from the horn of plenty at the
defendant's expense."
73. In exercising my discretion, I should thus consider a broad spectrum of
facts and circumstances that include the nature of the injuries, the
severity thereof , and how it impacts on E[...]’s quality of life. Account
should also be taken of the modern approach which acknowledges the
rising standards of living and the fact that past awards in our courts were
conservative as compared to other jurisdictions 28 (with due regard to the
warning in De Jongh’s case).
74. It is clear from the evidence on record that E[...] has, apart from
physical injuries, suffered persistent psychological consequences as a
result of the collision . The defendant argues that these consequences
are treatable, as is the seroma, and that E[...] will not necessarily suffer
life-ling effects.
75. Counsel for the plaintiff has referred to Noble v Road Accident Fund ,29
in which the plaintiff had sustained various injuries, inclu ding an ankle
fracture, right foot scarring, and a fracture of the right femur and right
hand. General damages in the amount of R600 000.00, with a current
day value of R1 212 000.00, were awarded.
76. In Kaduku v Road Accident Fund 30 the plaintiff sustained a fracture to
the left tibia and fibula, as well as a head injury with lacerations of the
26 At para 60.
27 1957 (3) SA 284 (D) at 287E-F.
28 Road Accident Fund v Marunga supra para 27.
29 [2011] ZAGPJHC 6 (24 February 2011).
30 [2017] ZAGPPHC 432 (22 March 2017).
scalp. An open reduction internal fixation, with tibial nails, was
performed, the head injury was treated conservatively , and the scalp
lacerations sutured. The plaintiff made a good recovery from the head
injury and no neuropsychological sequelae followed. General damages
in the amount of R750 000.00 were awarded, which would amount to
approximately R900 000.00 in current day value.
77. E[...], apart from his orthopaedic injuries and the seroma which
developed, also suffers substantial psychological sequelae in the form
of PTSD, anxiety and depression, which ha ve contributed to a large
extent to his poor academic performance, and have, together with his
physical injuries, impacted on his ability to participate in sport.
78. The defendant, on the other hand, has referred the court to Sefatsa v
Road Accident Fund ,31 in which the plaintiff suffered a bimalleolar
fracture and dislocation of the ankle, underwent two surgical operations,
and suffered from s carring, insomnia, PTSD and constant pain. The
plaintiff remained v ery anxious in traffic and feared another accident
occurring. She had i ntermittent flashbacks of the accident and suffer ed
from insomnia. The court awarded general damages in the amount of
R350 000.00 (R410 000 in current terms).
79. In Jacobs v Road Accident Fund 32 the plaintiff sustained whiplash
affecting her neck and back , and developed PTSD . She retained a
serious permanent neck injury negatively affecting her daily life and
causing a lo ss of self -esteem. The court awarded general damages of
R80 000 (currently R250 000).
80. Considering these wide-ranging scenarios, I am of the view that E[...]’s
case falls at the higher end of the spectrum. In the circumstances, an
award of R 800 000.00 in respect of general damages is fair , without
31 [2022] ZAGPPHC 846 (24 October 2022).
32 [2003] LNQD 10 (T).
being overly generous to the plaintiff at the expense of the defendant’s
purse.
Conclusion
81. I accordingly find that damages should be awarded to the plaintiff as
follows:
81.1 past medical expenses in the amount of R125 888.60;
81.2 future loss of earnings / earning capacity in the amount of
R3 362 606.50; and
81.3 general damages in the amount of R 800 000.00 less the interim
payment of R700 000.00, that is, R100 000.00.
Costs
82. Costs should follow the event. In the exercise of my discretion under
Rule 67A, 33 counsel’s fees should be taxed on Scale B , given the
nature and scope of th e case, the amounts involved, and the
importance of the matter to E[...] and his family.34
Order
83. I accordingly order as follows:
1. The defendant shall pay to the plaintiff the sum of R3 588
495.10, comprising of:
33 Which applies to work done after 12 April 2024.
34 Rule 67A(3)(b), in relation to the scale of counsel’s fees, refers to considerations which may
include the complexity of the matter, the value of the claim and the importance of the relief
claimed. This is not a closed list of considerations.
1.1 past medical expenses in the amount of R125 888.60;
1.2 future loss of earnings / earning capacity in the amount of
R3 362 606.50; and
1.3 general damages in the amount of R 800 000.00 less the
interim payment of R700 000.00, that is, R100 000.00.
2. The defendant shall pay interest on the sum of R3 588 495.10 at
the prevailing rate of interest, calculated from 14 days after date
of judgment to date of final payment.
3. The defendant shall pay the plaintiff’s costs of suit on the High
Court scale, includ ing the qualifying expenses of the expert
witnesses in respect of whom expert reports have been
delivered, as well as counsel’s fees taxed on Scale B in respect
of work done after 12 April 2024.
P. S. VAN ZYL
Acting Judge of the High
Court
Appearances:
For the plaintiff: Mr C. Bisschoff
Instructed by: Jonathan Cohen & Associates
For the defendant: Mr G. Cerfontyne
Instructed by: The State Attorney