SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 91871/2019
In the matter between:
ADV C CAWOOD NO obo JACOBS
CHRIHENSIO CRISTEN
PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
CLAIM NO: 560/12822996/313/0
LINK NO: 4683795
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHERS JUDGES: YES/ NO
(3) REVISED
DATE SIGNATURE
JUDGMENT
[1]. This is a delictual claim for damages as a result of a motor vehicle collision on
the 04 th May 2017 . The matter appeared before court by a way of default
judgment application on the 02 nd December 2025 . The plaintiff is CLAIRE
CAWOOD an adult female advocate of this Honourable Court, n omine officio,
as the duly appointed curator ad litem for the patient JACOBS CHRIHENSO
CRISTEN, an adult female, who was born on 14 June 1996 (“the patient ”)
and who is currently 29 (twenty-nine) years of age. At the time of the collision,
the plaintiff was twenty (20) years old.
[2]. The defendant is the ROAD ACCIDENT FUND , a juristic person established
in terms of section 2(1) of the Road Accident Fund Act 56 of 1996 (" the Act")
with full legal personality and of address 3[…] I[…] Street, Menlo Park,
Pretoria, Gauteng.
[3]. The plaintiff made an application in terms of Rule 38(2), in order to lead
evidence by a way of an affidavit. Such application was properly served and
accompanied by the expert affidavits. The application was granted. For future
medical expenses the Plaintiff is awarde d an undertaking in terms of section
17 of the Road Accident Fund Act
In this regard the plaintiff evidence is unchallenged and uncontested as the
defendant’s plea was struck off by the court.
[4]. THE MERITS:
4.1. The issue of liability is resolved as follows:
Accordingly, the defendant is held liable for hundred percent (100%) of
the plaintiff's proven or agreed damages.
[5]. QUANTUM:
5.1. The issues to be decided in this matter are what should be the fair,
reasonable and appropriate amount for general damages and special
damages (loss of earnings) , the contingencies to be applied to the
calculations and future medical expenses.
5.2. In quantifying it’s claim the plaintiff obtained medico-legal reports from
the following experts in support of her claim:
5.2.1. Dr T Sutherland (Psychiatrist);
5.2.2. Dr J Reid (Neurologist);
5.2.3 Dr K Roux (Psychiatrist);
5.2.4 Dr Z Domingo (Neurosurgeon);
5.2.5 Dr D Ogivly (Speech and Language expert)
5.2.6 R de Wit (NeuroPsychologist);
5.2.7 M le Roux (Occupational Therapist);
5.2.8 K Kotze (Industrial Psychologist);
5.2.9 Munro Consulting (Actuary).
[6]. The defendant did not appoint any medico-legal reports.
[7]. The plaintiff’s reports are unchallenged , it was correctly submitted by the
plaintiff’s counsel that they remain uncontested, and they should be admitted
as evidence in terms of Rule 38(2). An ap plication in terms of the said rule
was granted.
Herewith follows a summary of the plaintiff's claim based on the
aforementioned reports.
[8]. INJURIES SUSTAINED:
8.1. ACCORDING TO THE NEUROSURGEON DR DOMINGO:
8.1.1. The plaintiff sustained a severe traumatic brain injury (diffuse
axonal injury) with neurocognitive deficits. Residual sequalae,
with a history of loss of consciousness and;
8.1.2. Lumbar spine soft tissues injuries.
8.2. SEQULAE
8.2.1. The plaintiff currently complains of pain, headaches,
forgetfulness, change in behaviour and anxiety symptoms;
8.2.2. She reports constant headaches; her GCS was 7/15 . She
describes the headaches as throbbing in character, severe at
times;
8.2.3. The plaintiff is forgetful. She still has no recollection of the
accident. She forgets names and things that happened in the
past.
8.2.4. She sustained severe diffuse axonal injury with multiple
intracranial haemorrhage seen on CT scan
8.2.5. She has permanent residual cogn itive, psychological and
behavioural deficits.
8.2.6. Her CT Scan confirmed the presence of structural b rain
damage with multiple bilateral frontal grey -white matter
interface haemorrhages . This is indicative of diffuse axonal
injury (DAI)
[9]. ACCORDING TO THE NEUROLOGIST DR REID:
9.1. The plaintiff had a single ge neralized seizure which occurred on the
day of the accident;
9.2. The plaintiff’s reported duration of post traumatic amnesia was more
than two weeks;
9.3. Her level of consciousness was slow to improve. Glascow Coma
Scale was still abnormal by the time of discharge back to the rural
hospital more than a week later;
9.4. Her ongoing problems include poor concentration, forgetfulness,
altered emotion, behaviour and personality, unprovoked aggression,
poor motivation, lumbar back ache, daily holocranial headache,
emotional lability, intolerance of stress;
9.5. Her examination revealed poor short-term memory, limited reading,
writing and spelling skills, slow mental activity, short attention span,
dysexecutive syndrome, primitive reflexes, reciprocal in co-ordination,
9.6. She was diagnosed with severe closed head trauma, frontal lobe
contusion, diffuse axonal shearing, permanent neurocognitive
compromise, frontal lobe syndrome and post traumatic epilepsy.
[10]. ACCORDING TO THE SPEECH LANGUAGE THERAPIST DR OGILVY:
10.1. The plaintiff has a word retrieval deficit and reduced flexibility in the use
of words.
10.2. She has difficulties in the verbal formulation of her thoughts.
10.3. She losses track o f her thoughts when conversing or if interrupted
whilst speaking, which is likely underpinned by disturbances of
complex attention and mental tracking difficulties.
10.4. She has significantly reduced verbal working memory capacity.
10.5. She has dis turbances of auditory attention , including a restricted
auditory attention span and difficulties sustaining auditory attention.
10.6. She has central auditory dysfunction.
10.7 Her communication impairments negatively impact on her daily s ocio-
communicative interactions, on her social relations and on her level of
social interaction.
10.8 B ased on her communication , cognitive and emotional difficulties, the
expert opines that she is unemployable in the open labour market.
[11]. ACCORDING TO THE PSYCHIATRIST DR SUTHERLAND:
11.1. The plaintiff, since the accident has developed behavioural and mental
health difficulties. She reports that the medication made her feel
sedated and her husband described her as “Zombie” like whilst takin g
the treatment. She had an unprovoked episode of aggression where
she assaulted another woman. She reports that she “went” blank and
had no recollection of the assault, this led her to her discontinuing the
medication.
11.2. The plai ntiff suffers from physical symptoms (She has episodes of
dizziness and feels she will “fall over” particularly when standing in the
sun). She has intermittent back pain.
11.3. The plainti ff has Cognitive and Behavioural Symptoms (She has
difficulty reading and struggles to spell words when writing, she
struggles to read correspondence from the school regarding her son
and her husband must read same and explain the content t o her and
she is easily angered, including towards her children).
11.4 She has psychiatric symptoms ( her mood is frequently low and
following the accident , she began to have distressing intrusive
thoughts about harm coming to her child or about harming himself).
11.5 T he Psychiatric Clinical Examination, revealed that she was anxious
and distressed and her mood was slow. It was confirmed that she has
neurocognitive disorder.
11.6 It is opined that there has been marked change in her personality
post-accident characterised by high levels irritability and aggression ,
impulsivity and difficulties with emotional regulation . This is in keeping
with the nature of the brain injury sustained. The combination of her
cognitive and behavioural difficulties has rendered her unemplo yable
in the open labour market. She is vulnerable to exploitation and
requires protection.
[12]. ACCORDING TO THE CLINICAL PSYCHOLOGIST RENEE DE WIT:
12.1. The plaintiff presents with the following complaints:
12.1.1. After the accident she struggled with the day-to-day
functions;
12.1.2. She reports that she experiences regular headaches
since the accident. She sometimes complains of back
pain. She sleeps a lot during the day. Her sleep is
disrupted.
Cognitively, she is ver y forgetful since the accident. She
struggles to maintain concentration and sometimes
pauses in the middle of a sentence because she forgets
what she wanted to say. She is generally slower to think
and reason compared to before the accident.
Behaviourally, she is much more dependent on her
boyfriend and relatives. She is very quick to anger since
the accident. She is aggressive when she is angered.
She lost control of her temper and assaulted a woman.
She lacks energy and drive since the accident. She
spends most of the day resting and sleeping. She is less
social and isolates herself at home. She prefers to be at
home, alone in her own room. She becomes stressed
and upset about minor issues very easily.
12.1.3. On her return to work she struggled to work on the same
level as prior to the acciden t and injuries sustained and
her overall productivity dropped;
12.1.4 The company began to send her less work, and she
reports that by the time she realised that she was not
going to cope in the position of a cashier.
[13]. TREATMENT RECEIVED:
13.1. The Plaintiff was initially transpo rted to Tygerberg Hos pital by
ambulance, where she was assessed and stabilized;
13.2. The plaintiff was sent for X -rays and scans. CT scan confirmed the
presence of multiple intracranial haemorrhages and cerebral oedema.
Her traumatic brain injury was treated conservatively.
13.3. She remained stable. She was intubated and transferred to Paarl
hospital for rehab ilitation. At that time she was confused , disorientated
and not talking. After approximately two weeks she was discharged
home. She remained confused and required assistance with activities
of daily living. Her condition has stabilised. She remains symptomatic.
The plaintiff went to a public hospital, and there are no vouchers for past
medical expenses. Therefore, there are no past medical exp enses incurred
by the plaintiff.
[14]. TREATMENT ENVISAGED IN THE FUTURE:
14.1. The Neurosurgeon recommends an allowance of analgesia, which
costs R 10 000.00. An allowance of R350 000.00 should be made
available for the investigation and treatment of late post -traumatic
seizures.
14.2. The plaintiff will require future treatment for the management of pain.
14.3. The plaintiff is incapable of independent living; provision will need to be
made for home-based care should family members no longer be able
to cater for her.
14.4. The plaintiff will require psychiatry assessment and treatment for the
depressive, post -traumatic stress disorder related and psychotic
symptoms.
As a result, the plaintiff is awarded future medical expenses in terms of
Section 17 of the Road Accident Fund Act. In the matter of Koetze obo
Malinga a nd Another v Road Accident Fund (77573/2018;
54997/2020 [2022 ZAGPPHC 819; [2023] 1 All SA 708 (GP), the CEO
of the Defendant offered a blank undertaking for all proven future
medical hospital and related expenses in all cases before the court
where such are proven and therefore it is held that the plaintiff is
entitled to such an undertaking.
[15]. EFFECT ON EMPLOYMENT / LOSS OF EARNINGS:
15.1. At the time of the accident the plaint iff was working as a Cashier .
Currently she is not working, she was dismissed from her
employment. Her qualifications include a grade 09 . She struggles
with manual work because of the left shoulder and left knee pain.
15.2. Her main complaints are her headaches. With his current complaints,
it is foreseen that she will struggle to find employment in the open
labour market. She will need a sympathetic employer.
[16]. MEDICO-LEGAL REPORT OF THE NEUROSURGEON:
16.1. The plaintiff’s cognitive and communicative deficits will have a negative
impact on her employment and promotional prospects. Her behavioural
problems will affect her interaction with employers, fellow workers and
customers. Should she develop seizures then she will be unable to
work at heights or with power equipment. Taking all factors into
account the expert opined that the plaintiff is permanently disabled and
will have difficulty obtaining and retaining employment. She is
unemployable in the open labour market.
16.2. The injuries already had a profound impact on the plaintiff’s amenities
of life, productivity and working ability and will continue to do so in the
future.
16.3. According to the plaintiff , she returned to his employment for a few
months but was experiencing difficulty with some of h er activities due
to the accident and injuries sustained and could not continue any
longer.
16.4. The plaintiff's workability has been disturbed and restricted because of
her injuries.
16.5. The plaintiff's workability was detrimentally influenced by h er injuries
and its sequelae. It is unlikely that she will be able to return to h er pre-
accident activities and work capabilities as a result of the symptoms
arising from her injuries.
[my own emphasis]
16.6. The plaintiff is no longer an equal competitor in the open labour
market. The injuries the plaintiff sustained in the accident make her an
unfair competitor in open labour market.
16.8. At the time of the accident, she was working as a cashier. Sh e
sustained injuries of her head and soft tissue injuries, of which she still
suffers from the sequelae. The plaintiff injuries have had a profound
impact on her occupation as a cashier.
[17]. MEDICO-LEGAL REPORT OF PSYCHATRIST DR SUTHERLAND:
17.1. Following the a ccident, she was “very emotional ” and “had no
patience”. She did not feel she would be able to appropriately deal
with clients as a cashier as they often haggled over the price of
goods, and she felt she would lose her temper.
17.2. She was thus changed to the position of packer. She experienced
difficulties in thi s role as she forgot instructions , was irritable and
shouted at and scolded her colleague and clients. She was prone to
errors when writing inventories and made a mistake when she
accepted an incomplete order of milk. She was dismissed after a
year.
17.3. Collateral information from Ms Andrea Willemse the plaintiff’s
supervisor at the China Shop was that prior to the accident she was a
very good worker. She worked as a cashier and helped in the shop.
She took initiative and would run the shop alone on weekends without
any difficulties.
17.4. Ms Willemse further reported that following the accident the plaintiff
“was different”. She was very emotional and often cried. She worked
briefly as a cashier but argued with customers and was verbally
aggressive. In addition, she made errors when ringing up items.
17.5. She was therefore moved to the position of a packer and her shifts
were reduced to working three days a week as she created so many
problems with clients because of her behaviour that Ms Willemse felt
she was constantly needing to placate disgruntled customers.
17.6. She no longer took initiative , her work had to be checked due to
errors she made, she could not be left alone in the shop and was no
longer capable of managing the shop independently. Her work speed
was slow, she miscounted stock, submitted incorrect orders an d
accepted two incomplete deliveries which resulted in her being
dismissed.
17.7. She reported that following the accident she worked as a farm worker
for a period. She could not cope with working in the sun as it
precipitated episodes of dizziness and li ght headedness where she
felt she would collapse. She was moved to the storeroom but lost her
temper and argued with a colleague and subsequently left the job as
her husband did not feel she was coping.
[18]. MEDICO-LEGAL REPORT OF SPEECH AND LANGUAGE THER APIST
DR OGILVY:
18.1. Based on the plaintiff’ s communication, cognitive and emotional
difficulties , the expert opined that the plaintiff is unemployable in
the open labour market. This is a tragedy considering her young
age , that she has a young child to provide for , that prior to the
accident she had managed to secure full time employment , and
that had the accident not happened , she would have likely held
long-term steady employment , obtained promotions and
maintained her independence like other family members and her
fiancé.
[19]. MEDICO-LECAL REPORT BY THE CLINICAL PSYCHOLOGIST
RENEE DE WIT:
19.1. Pre-accident, she worked as a factory worker for a year and
subsequently as a cashier at Saron Chin a Shop for
approximately one year, up until the accident. Prior to the
accident she would most proba bly have continued working in
similar positions, should she have left her job at the China shop.
19.2. Post-accident, following the accident, she realized that she was
not going to cope in the position of a cashier and therefore
returned to working at the China shop in a lowered capacity as a
shelf packer, which is less cognitively demanding work. She was
short tempered and made mistakes, and she was eventually
dismissed.
19.3. The expert opines that she should be considered unemployable in
the open labour market due to significant memory, concentration,
and emotional control difficulties she experiences post-accident. She
will most likely lose any employment which she might be a ble to
secure. Her supervisor at the china shop is a friend, but despite that,
the plaintiff was eventually dismissed after she made a mistake, any
other employer who did not know her before the accident would be
even more unsympathetic.
[20]. MEDICO-LEGAL REPORT BY THE OCCUPATIONAL THERAPISTS
MARTINETTE LE ROUX:
20.1. From a physical perspective , the Plaintiff is restricted to
predominantly sedentary to light work where she has the
opportunity to alternate posture to avoid being on her feet for
long periods.
20.2. She should cope with the frequent standing work, but it is
restricted to occasional static , forward be nding as well as
crouching and kneeling in combination therewith, should be
confined to occasionally.
20.3. Considering the aforesaid , she does not have the physical
capacity to work in a production line/packing she lf as before,
and it is plausible that ph ysically, she endured difficulties at the
Saron China shop. Should she develop epilepsy her options
would be further compromised.
20.4. The combination of her physical , neuropsychological and
cognitive comm unicative difficulties , severel y limits her
employment options , opportunities and ability to secure
employment. Her prominent behavioural problems are highly
likely to prevent her from sustaining any position in the open
labour market.
20.5. It is noted that she could not even maintain employment in an
empathetic work environment where her supervisor was also
her friend, and who attempted to accommodate her as far as
possible. It is the opinion of the expert that the plaintiff is
essentially unemployable.
[21]. MEDICO-LEGAL BY THE INDUSTRIAL PSYCHOOGIST KAREN
KOTZE:
The impact of the collision and injuries upon plaintiff’s earning.
21.1. INDUSTRIAL PSYCHOLOGICAL OPINION:
Based on the assessment and ex pert opinion in section
5 supra, it appears that the plaintiff career prospects and
employability have been impacted by the sequelae of
the injuries sustained in the accident in the following
respects:
21.1.1. Medical experts are in agreement that the
accident and it’s sequelae have r endered
Plaintiff unemployable in the open labor
market.
21.1.2. In this regard, from a physical perspective, her
residual physical capacity has been restricted
to sedentary to light category work. She is no
longer suited to her pre -accident work role,
and it is plausible that she endured difficulties
post-accident.
21.1.3. Furthermore, noting her level of educa tion,
she has been rendered unsuited to work roles
associated with her residual physical capacity,
as sedentary to light category work roles are
usually of an administrative nature , requiring
grade 12 level of education.
21.1.4. She furthermore sustained a severe closed
head trauma, resulting in permanent
neurocognitive compromise, marked
expressive and receptive cognitive -
communicative deficits as well as
neuropsychological deficits.
21.1.5. Despite the above but driven by the necessity
to generate a much-needed income, she
returned to her pre -accident work following
the accident. Noting the sequelae of the
injuries sustained in the accident , she should
be commended for her determination and
diligence to attempt to generate an income.
21.1.6. She was unable to cope with the job demands
but was fortunate to have been employed by
an employer who was willing to accommodate
her in a light duty capacity with reduced
responsibilities. Despite the accommodation,
she was eventually dismissed, as her error
proneness resulted in notable losses to the
business.
21.1.7. Noting expert opinion on the sequelae of the
injuries sustained in the accident , which is
supported by what has transpired i n the
workplace post -accident, the expert opines
that her occupational functioning and career
prospect have been obliterated by the
accident.
21.1.8. Now that she has forfeited her accommodated
employment, the expert opines that she will
remain unemployed for the remainder of her
working life.
21.1.9. The Plaintiff's post -accident career prospects
have b een significantly truncated. She is
physically, neurocognitive, and
psychologically compromised, making her
unsuited for heavy physical work or
managerial roles.
[22]. LAW
22.1. LOSS OF EARNINGS
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. It must be noted, a physical disabili ty which
impacts on the capacity to an income does not, on its own,
reduce the patrimony of an injured person. It is incumbent on the
plaintiff to prove that the reduction of the income earning
capacity will result in actual loss of income.
22.2. In quantifying such a claim an Actuary is often used to make
actuarial calculations based on proven facts and realistic
assumptions regarding the future. The role of the Actuary is to
guide the court in the calculations to be made. Relying on its
wide judicial discretion the court will have the final say regarding
the correctness of the assumptions on which these calculations
are based. The court should give detailed reasons if any
assumptions or parts of the calculations made by the actuary
are rejected. I t must be borne in mind that the actuary depends
on the report of the Industrial Psychologists, who in turn are
dependent on the information provided by the claimant.
22.3. The learned author Dr R.J. Koch in The Quantum of Damages
Year Book states at pa ge 118 that the usual contingencies
which the Road Accident Fund accepts is 5 % on the past
income and 15 % on the future income. The aforesaid is only a
guideline, but it indicates the general approach adopted by the
defendant in similar matters. The lear ned author continues on
page 118 to suggest (based upon the authorities of Goodall v
President Insurance and Southern Insurance Association v
Bailey N.O. that as a general rule of thumb, a sliding scale can
be applied, i.e. “1/2% per year to retirement ag e, i.e. 25% for a
child, 20% for a youth and 10% in middle age:”
22.4. The court, in the case of Road Accident Fund v Guedes at
paragraph [9 ] referred with approval to The Quantum
Yearbook, by the learned author Dr R.J. Koch, under the
heading 'General Contingencies', where it states that:
“…[when] assessing damages for loss of earnings or
support, it is usual for a deduction to be made for
general contingencies for which no explicit allowance
has been made in the actuarial calculation. The
deduction is the prerogative of the Court...”.
22.5. The percentage of the contingency deduction depends upon a
number of factors and ranges between 5% and 50%, depending
upon the facts of the case.
22.6. The importance of applying actuarial calculations and its
advantages was discussed in the case of Southern Insurance
Association v Bailey NO , the court referred with approval to the
case of Hersman v Shapiro and Company at 379 per Stratford J
where the following was said:
‘Monetary damage having been suffered, it is necessary for the
Court to assess the amount and make the best use it can of the
evidence before it. There are cases where the assessment by
the Court is little more than an estimate; but even so, if it is
certain that pecuniary damage has been suffered, the Court is
bound to award damages.'
“Any enquiry into damages for loss of earning 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, w hich
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 guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of
mathematical calculations, on the basis of 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 guesswork to a
greater or lesser extent. But the Court cannot for this reason
adopt a non possumus attitude and make no award.”
22.7. Ultimately, the award for future loss of earnings or earning capacity
must be based on good medical evidence and corroborating facts.
There must be some reasonable basis for arriving at a particular figure.
In the event of a mathematical approach, one has to first w ork out what
the third party’s earnings would have been but -for the accident (that is,
if the accident had not occurred), and secondly, one has to calculate
what the plaintiff’s earnings are now that the collision has occurred
(having regard to the acciden t) and the difference between these two
amounts will then represent the loss.
[23]. GENERAL DAMAGES
23.1. The awarding of general damages is within the court’s discretion which
discretion has to be exercised reasonably and judiciously. Tritely, there
are no two cases which are similar in nature. The circumstances of the
patient here cannot be mirrored against any of the cases which have
been used by the parties. However, these cases do serve as a guide
for this court to take into consideration the award of general damages.
23.2 Determining quantum for general damages is certainly not an exact
science:
“This is so because although 'the law attempts to repair the wrong done
to a sufferer who has received personal injuries in an accident by
compensating him in money, yet there are no scales by which pain and
suffering can be measured, and there is no relati onship between pain
and money which makes it possible to express that one in terms of the
other with any approach to certainty'. A trial court is required, in the
exercise of a wide discretion, to award 'what it in the particular
circumstances considers to be a fair and adequate compensation to the
injured party for his or her bodily injuries and their sequelae'”.1
1 Road Accident Fund v Van Rhyn 2007 JDR 0125 (E) at para 30.
Further, “ in the exercise of that broad discretion the trial court must:
consider a broad spectrum of facts and circumstances connected to the
plaintiff and the injuries suffered by him or her, including their nature,
permanence, severity and impact on his or her li fe; take into account
the tendency for awards now to be higher than they once were, as a
result of changing values in our society, improvements in the standard
of living and the fact that awards have traditionally been lower in this
country than in many ot hers; and allow itself to be guided by the broad
patterns of awards made by courts in the past.”2
23.3. The plaintiff’s counsel referred the court to the following several cases
to be considered in awarding general damages. Clearly, they are
distinguishable to the facts before the court. The plaintiff had suffered
orthopaedic injuries. For an instance the court was referr ed to the case
of Advocate G Slingers NO OBO Sophia Wilhelmina Esterhuizen v
Road Accident Fund , in which the plaintiff suffered orthopaedic
injuries (such as a fractured tibia and fibula). The Plaintiff’s counsel
argued that an amount of R 3 500.000 (Three Million and Five
Hundred Thousand) should be awarded as general damages. I hold a
different view regard with regard to th e amount as suggested by the
Plaintiff’s counsel . On the other hand, there were several cases
referred to by the Curator ad litem. I am in agreem ent with the case
(DU TOIT NO JVW v RAF 2024 ( 8A4) 206 156 (GNP ), that was
referred by the curator ad litem in her report dated 25 June 2025.
23.4. Therefore, an amount of R2 200.000 (Two Million Two Hundred
Thousand) is fair and reasonable in the circumstances.
2 Id at para 31.
24.4. In Megalane NO v Road Accident Fund 2006 (5A4) QOD 10 (W ), a
case of comparable severity, but where life expectancy was limited to 49
years, unlike here where there is no cap on life expectancy. Here an
inflation award of R 1 946 000.00 was made.
23.5 In Webb v Road Accident fund ( Gauteng Division , Pretoria : case
number 2203/2014, 14 Janua ry 2016) QOD (Vol VII)A3 -24, a case of
paraplegia without any brain damage, in which the victim was still
employable ( an updated amount of R 1 600 000.00 was awarded).
23.6 In Bhekisisa Simon Dlamini ( Gauteng Division, Pretoria ,case
number 59188/2013, 3 September 2015 ( a brain injury only ,without hemi
or paraplegia) where an amount (updated) of R 1 500 000.00 was awarded.
23.7 In Advocate Van Rooyen NO v Road Accident Fund at paragraph 11,
the court dealt with the injuries sustained by the claimant as a severe
head injury that resulted in severe brain damage with permanent
physical, cognitive, neuropsychological and psychological
consequences. In short, post-accident he is severely and permanently
impaired. The court awarded R 2 200 000.00.
23.8 In Mazibuko v Passenger Rail A gency of South Africa
(6371/2017[2024] ZAGPJHC 585 (21 June 2024), the court awarded an
amount of R1 900 00 00 . The plaintiff was ejected and fell out of a
moving train and sustained severe injuries inclusive of a severe head
injury. Upon admission he had a low Glasgow coma scale (9/15) and he
was hospitalised for 5 months. He had a comminute depression left
frontal parietal skull fracture , subarachnoid and intraparenchymal
haemorrhage.
23.9 In Maponya v Road Accident Fund 2018 JDR 1142 (GJ) is an
unreported judgment of Moshidi J dated 18 June 2018 where the Plaintiff
was granted an amount of R 1 900 000 in respect of general damages.
The Plaintiff had sustained a severe head injury , leading to
neurocognitive and neurobehavioral changes which manifested in poor
memory and concentration, aggressive behaviour and various other
injuries which left him disabled and disfigured.
23.10 Taking account of these comparable cases and the higher or lesser
degrees of the severity in them , I am satisfied that the amount of R 2
200.000.00 for general damages proposed by the Curator ad litem in her
initial report is appropriate, fair and reasonable.
[24]. APPLICATION OF LAW TO FACTS
24.1. The plaintiff ’s future loss of earnings or capacity to earn has been
actuarially calculated and the basis of such calculations, which is
discussed below are consistent with the facts and probabilities in the
matter.
24.2. The plaintiff’s case remains undisputed and remains unchallenged. The
defendant has not appointed a single expert to challeng e and or
contradict the plaintiff’s expert witnesses. There is also no evidence
before me that prior to the collision the plaintiff had any neurocognitive
problems.
24.3. In so far as the injuries are concerned, it has not been disputed that the
plaintiff sustained severe traumatic head injury (with 07 /15 GCS ) and
soft tissue injuries which was consequent to the motor collision. It
remains u ndisputed that the plaintiff’s neuropsychological,
neurocognitive and neurobehavioral arising from the accident has been
impaired.
24.4. The Clinical psychologist opines that the plaintiff’s employment has been
adversely affected and as result curtailed . Her restricted range of
movement and cognitive challenges including memory and attention
deficits, make her an unfair competitor in the open labour market.
24.5. The psychiatrist opines that the plaintiff’s productivity and career
prospects may be limited due to his physical and psychologic al
impairments.
24.6. The occupational therapist opines that the cognitive deficits would have
a n egative impact on his work abilities and fu ture employment. She
competitiveness in the open labour market has been compromised,
especially for roles exceeding medium physical demands. She is
unemployable in the open labour market. Her c areer options are
significantly reduced as a result of the injuries sustained.
24.7. The industrial psychologist’s uncontested postulations regarding the
pre and post morbid future loss of earnings prior to and but for the
accident is the only evidence that is before me which I must accepted.
24.8. I accept that the plaintiff would require an understanding employer who
will be willing to accommodate h er cognitive limitation should she
secure work in future. H er working environment would also need to be
less cognitively demanding as she would struggle to perform with the
pressures of work, as a Cashier . I have also considered that she is no
longer perform ing at h er pre-accident potential as a result of the
accident.
The plaintiff is therefore likely to suffer a future loss of earnings to be
calculated as the difference between h er pre-accident earning potential
and her post-accident earning potential.
24.9. I am mindful that the plaintiff will be an unequal competitor at the open
labour market compared with her healthier peers and that she will not
be able to perform functions efficiently an d effectively as compared to
her counterparts. The injuries sustai ned from the accident will hinder
her career and future employability. The plaintiff has suffered a
medically justifiable loss of earnings or work capacity as a direct result
of the accident.
24.10. I find that the plaintiff’ s expert witnesses remain the only evidence
before me. The submissions ma de by industrial psychologist are clear,
reasonable and persuasive. I therefore find that the evidence before me
is credible and I accept it as reliable and plausible.
[25]. According to the actuarial calculations by Munro.
25.1. Pre-Morbid (retirement age 65)
According to the addendum report of Karen Kotze (industrial
psychologist), dated 11th November 2025, plaintiff earned an income of
R150.00 per day, as a cashier, stock receiver and shop assistant. She
worked for six days per week. She would probably have continued
working as such with straight line increases and earnings inflation to 65
years. It is postulated that she would have earned R900 per week., R 3
897 00 per month and R46 764 00 per annum. It is postulated that she
would have reached a career ceiling at 45 years, she would probably
earned in the upper quartile for semi -skilled workers and for 2025, this
is expressed as R 228 000.00.
25.2. Post-Morbid (retirement age 65)
According to the addendum report of Karen Kotze (Industrial
Psychologist), it is postulated that the Plaintiff will remain unemployed
for the remainder of her working life and a total loss of earnings has
occurred.
A total loss of earnings had occurred from the date of the termination of
her accommodated employment on 11 October 2019. At that stage she
was twenty three (23) years old. She had a future working life span of
forty two years (42), that was interrupted and affected by the injuries
sustained in the accident.
[26]. Plaintiff’s counsel submitted that contingencies are to be applied as usual since
the Road Accident Fund Amendment Act 19 of 2005 cap does not have an
impact on this case. In this regard counsel argues the contingency deductions
of 5% on uninjured earnings and 15% on uninjured future earnings should be
applied. I agree with the contingencies applied in the past loss of earnings.
I hold a different view with respect to future contingencies:
A 5% deductions on past pre-morbid income is acceptable.
No deductions on past post-morbid income
20% deductions for future pre-morbid income is applied.
No deductions for future post-morbid.
Future contingency deductions:20%
Pre-morbid Post-morbid Loss
(difference)
Past earnings 589 800 88 800
Minus contingency (5%)
Past loss of earnings 560 310 88 800 471 510
Future earnings 4 105 900
Minus contingency (20%)
Future loss of earnings 3 284 720
Total loss of earnings 3 756 230
[27]. The loss of earnings after the above -stated contingency deductions amount to
R 3 756 230 (Three Million Seven hundred and Fifty Six thousand Two
hundred and Thirty Rand). The calculations were on the basis that the
plaintiff is not expected to reach the suggested pre -accident career potential
and that she might suffer losses that are directly quantifiable and should be
address via contingencies. The retirement age is at 65 years.
[28]. It is trite that in considering what damages to award in damages claims, the
court exercises discretion. In doing so, the court has to ensure that the award
for damages made is fair and reasonable. This is usually achieved through
judicial precedent. The a ctuaries recommend the so called normal
contingencies apply as discussed above.
[29]. When considering the contingency deductions to be applied on actuarial
calculations of loss of earnings, allowance for contingencies involves, by its
very nature, a proc ess of subjective impressions or estimations rather than
objective calculations. The so-called normal contingencies referred to takes into
account that a plaintiff might ordinarily sustain some loss in his future income
by virtue of: falling sick from time to time; the prospect of unemployment and an
inability to secure alternate employment immediately; the prospect of being
injured in circumstances where the plaintiff would receive no compensation
from any source; the saved costs of unemployment.
I ap plied my mind to the plaintiff ’s circumstan ces. I have considered the
plaintiff’s background and family history.
[30]. ACTUARIAL CALCULATIONS IN RESPECT OF LOSS OF
EARNINGS:
30.1. The calculations are submitted to be fair and reasonable in the
circumstances, and the Court is satisfied to grant the total nett
loss of income in the amount of Three Million Seven Hundred
and Fifty Six Thousand Two Hundred and Thirty Rand (R 3
756 230) as set out in the 15 % contingency spread scenario
above.
30.2. The plaintif f’s present work role as a cashier is considered to
be Light physical work .
30.3 The plaintiff is not suited to her work role and is not expected to
be able to sustain such indefinitely over the long run.
30.4. She would also not be able to perform cognitively demanding
work as is required in cashier work roles. Her promotional
prospects and career progression is therefore significa ntly
curtailed.
[my own emphasis]
30.5. She suffers from significant cognitive fallouts for immediate memory
and verbal learn ing, making it difficult for her to learn and retain new
work skills and work as a cashier.
30.6. In addition, she could be expected to struggle with optimal attention
and concentration which may lead to poor work performance and result
in conflicts with customers, supervisors / managers for work not
adequately completed.
30.7. When she experiences pain her memory and concentration would
further be negatively affected. Moreover, she could also be more error
prone and less attentive to detail, negatively affecting the quality of
work output as a cashier.
[my own emphasis]
30.8. She is unlikely to reach his pre-MVA occupational potential.
30.9. Her occupational functioning has been negati vely impacted by the
sequelae of the injuries sustained in the MVA and resulted in a loss of
productivity and efficiency. As a result, she has been dismissed.
[my own emphasis]
30.10. She has been compromised from a physical, neurocognitive and
psychological perspective by his MVA -related injuries and their
sequelae.
30.11. In general, it is acknowledged that employees with impairments would
be disadvantaged, to a greater extent or lesser extent, in respect of her
competitiveness in the open labour market, especially in comparison
with uninjured peers.
[my own emphasis].
30.12. The plaintiff has been rendered significantl y occupationally
unemployable.
30.13. Her ability to seek and secure other suitable sympathetic
accommodative employment has been significantly curtailed by h er
physical neurocognitive and psychological sequelae. S he would find it
very difficult to secure alternative similar employment. She is unsuited
to work as a cashier.
30.14. Should the recommended treatment be unsuccessful, and the current
MVA –related symptoms remain unchanged, or even exacerbated, she
would, in all probability, remain unemployable.
[my own emphasis]
Having regard to the aforementioned cas es, it is the courts view that special
damages in the amount of Three Million Seven Hundred and Fifty Six Thousand
Two Hundred and Thirty Rand ( R 3 756 230 ) is fair and reasonable under the
circumstances.
[31] CONCLUSION:
In the premises I make the following order:
1. The Defend ant is liable hundred percent ( 100%) in respect of the plaintiff’s
agreed and or proven damages;
2. Future hospital and medical expenses: Section 17(4)(a) Undertaking;
3. General damages R 2 200 000;
4. Loss of earnings R 3 756 230;
5. Costs of counsel on scale C
Total R 5 956 230
_________________
J. ZITHA AJ
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 02nd December 2025
Judgment delivered: 02 March 2026
APPEARANCES:
For the Plaintiff: Advocate Anton Loubser
Attorney for the Plaintiff: Adendorff Attorneys
For the Defendant: None
Attorney for the Defendant: None