IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 10374/21
In the matter between:
GABOUTLOELOE, OFENTSE Plaintiff
and
ROAD ACCIDENT FUND Defendant
Delivered: this judgment was prepared and authored by the judge whose name is reflected
and is handed down electronically and by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of his matter on Caselines. The date for
handing down is deemed to be 3 March 2026.
ORDER
1. The draft order, as amended, marked "X" is made an order of the court.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
3 March 2026 _____________________
DATE SIGNATURE
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JUDGMENT
CARELSE AJ
Introduction
[1] In this matter, the plaintiff has instituted an action against the defendant for
damages arising from personal injuries sustained in a motor vehicle accident that
occurred on 9 August 2019.
[2] The matter came before me on the special default judgment roll on 2 March
2026.
[3] When the matter was called, counsel for both parties confirmed that the
dispute had been settled in all respects, as reflected in a draft order handed up to the
Court, save for the issue of general damages.
[4] I allowed both counsel to address me on the issue in dispute and, in the
absence of any objection, granted the plaintiff’s applications to amend his particulars
of claim and for relief in terms of Rule 38(2). I thereafter reserved judgment on the
issue of general damages to consider the parties’ submissions.
[5] As the matter proceeded on the basis that liability and the remaining heads of
damages had been settled, and the defendant’s defence had previously been struck
out, the only issue requiring determination is the appropriate award for general
damages. What follows are my brief reasons for that determination.
[6] The defendant has made a formal offer in respect of general damages.
Although not accepted, the offer constitutes an implicit acceptance that the plaintiff’s
injuries meet the statutory threshold of seriousness and warrant an award of non -
patrimonial damages.1
The injuries and the sequelae thereof
1 Chetty v Road Accident Fund (A91/2021) [2021] ZAGPPHC 848 (7 December 2021) at para 19.
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[7] The following medical -legal and expert reports form part of the Plaintiff’s
expert bundle:
(a) Orthopaedic Surgeon, Dr. VM Close, dated 7 February 2023 and
addendum report dated 26 November 2025;
(b) Neurosurgeon, Dr. JH Kr üger, dated 14 April 2023 and addendum
report dated 14 November 2025;
(c) Plastic & Reconstructive Surgeon, Dr. L Berkowitz, dated 16 March
2023;
(d) Clinical Psychologist, Monique Kok, dated 5 June 2023 and addendum
report dated 27 November 2025;
(e) Occupational Therapist, H van Rooyen, dated 10 July 2023;
(f) Industrial Psychologist, HT Kraehmer, dated 25 July 2023 and
addendum report dated 27 January 2026; and
(g) Actuary, GA Whittaker, dated 4 February 2026.
[8] The defendant did not file any expert reports and, apart from what will be
discussed hereunder, did not object to the contents of any of the plaintiff’s expert
reports.
[9] The plaintiff’s heads of argument contain a comprehensive summary of the
injuries and sequelae as reflected in the expert reports. That summary accords with
the contents of the medico -legal evidence admitted without objection. The medico -
legal reports collectively establish the following position.
(a) The plaintiff sustained multiple serious injuries in the motor vehicle
accident of 9 August 2019.
(b) Orthopaedically, he suffered bilateral radius fractures, including a right
ulna fracture which progressed to a hypertrophic non -union with
malalignment, and a suspected right scaphoid fracture. As a
consequence, he has severe loss of pronation, reduced wrist mobility,
persistent pain and a visible deformity of the right wrist. He also
sustained a left distal radius fracture, which healed satisfactorily, and a
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soft-tissue cervical spine injury associated with chronic cervicogenic
headaches.
(c) Neurologically, the plaintiff sustained a moderate traumatic brain injury,
evidenced by loss of consciousness and post -traumatic amnesia. He
further suffered a lung contusion with pneumothorax requiring
intubation and ventilation. He has been left with multiple scars on the
forehead, thorax, forearms, wrists and hands, some of which constitute
permanent disfigurement and have been identified as requiring surgical
revision.
(d) The most significant long-term neurological sequela is the development
of chronic epilepsy, first manifesting in 2022 and attributed by the
neurosurgical expert to the traumatic brain injury. The seizures are
described as involving blackouts, confusion and post -ictal fatigue, and
resulted in a further motor vehicle accident in June 2023, after which
his driving licence was revoked. He continues to experience cognitive
deficits, including impaired short -term memory, reduced concentration,
slowed mental track ing, word -finding difficulties and executive
dysfunction. These deficits affect his reliability, organisation and ability
to manage his business. Psychologically, he presents with irritability,
emotional lability, anxiety and adjustment difficulties associated with
the epilepsy, although no major psychiatric disorder has been
diagnosed.
(e) Functionally, he experiences ongoing bilateral arm pain, reduced grip
strength and difficulty lifting or carrying equipment. These limitations
impair his ability to perform the physical demands of sound engineering
and affect certain domestic tasks requiring strength. His epilepsy
restricts him from working at heights, around strobe lighting, or in
environments that may precipitate seizures. The loss of his driving
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ability has materially reduced his independence and increased
operational constraints.
(f) Occupationally, he has shifted from event-based work to less physically
demanding studio-based production. The experts are in agreement that
he has sustained a material and permanent reduction in earning
capacity, that he is now a vulnerable worker, and that his working life
expectancy is likely to be reduced by approximately 18 months to two
years.
[10] Following the accident, the plaintiff required a month -long hospital admission
during which he was intubated, ventilated and treated for bilateral forearm fractures,
a pneumothorax and head lacerations.
[11] The Court was also referred to photographs in the trial bundle that depict the
severe, unsightly and permanent post-surgical scarring on the plaintiff’s body, and in
particular on his right forearm. It is clear that the plaintiff has been left with serious
permanent disfigurement. Dr. Berkowitz opines that the most serious 6 scars will
require surgical revision, which would be performed under general anaesthesia with
an overnight hospital stay for elevation of both upper limbs.
[12] In terms of pain and suffering, Dr Berkowitz states that the plaintiff will
experience moderately severe pain for 6 –12 hours after the revision surgery,
followed by moderate pain for 5 –7 days. He anticipates that the plaintiff will be
temporarily totally disabled for approximately one week following the procedure.
[13] The experts also agreed that the defendant will require further surgery to his
right wrist to correct the malalignment and address the persistent non -union of the
ulna. Up to six months of sick leave is anticipated following that procedure. On his
left side, the locking plate which was inserted, may require removal in future.
[14] The plaintiff was self ‑employed as a sound and lighting technician prior to the
accident, a role requiring lifting, carrying, climbing, and manual dexterity. Upon
accident, a role requiring lifting, carrying, climbing, and manual dexterity. Upon
returning to work, he became more reliant on assistants due to his inability to carry
heavy equipment. Following the onset of epilepsy, he ceased controlling sound
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during events and now focuses on lighting, further reducing his earning capacity. He
was 34 years old at the time of the accident and is currently 40 years old and still
self-employed as a sound engineer, but with reduced earnings.
[15] Following the accident, the plaintiff developed significant neurological
sequelae directly attributed by Dr Krüger to the moderate traumatic brain injury (TBI).
In 2022, the plaintiff experienced his first epileptic seizure, and he has since been
diagnosed with chronic epilepsy, which Dr Kr üger states is probably the result of a
focal brain injury complicating the original TBI. He describes typical generalised
tonic‑clonic seizures involving loss of consciousness, falling, fitting, tongue ‑biting,
incontinence, and post ‑ictal confusion. Despite treatment with Epilim, the plaintiff
continues to experience approximately two seizures per month. Dr Kr üger
emphasises that each seizure constitutes a secondary brain insult, increasing
metabolic demand on the brain and compounding the long‑term effects of the TBI.
[16] Cognitively, the plaintiff reports persistent short ‑term memory loss, poor
concentration, forgetfulness, and difficulty sustaining attention, all of which Dr Kr üger
attributes to the TBI. He also reports executive dysfunction, including personality
change, described as becoming more calm and reserved, and reduced emotional
resilience. Psychological symptoms include anxiety about his financial and
occupational future, travel anxiety, and features consistent with post ‑traumatic stress
disorder.
[17] Aside from the issue concerning the plaintiff’s epilepsy, counsel for the
defendant did not challenge any of the other findings or conclusions in the experts’
reports or the photographs to which the Court referred.
[18] Counsel for the defendant contended that there is no proper factual basis for
the plaintiff’s claim of chronic post traumatic epilepsy, particularly given that the first
the plaintiff’s claim of chronic post traumatic epilepsy, particularly given that the first
recorded seizure occurred in 2022, approximately five years after the accident, and
that there is no record of any subsequent seizures. That contention cannot be
sustained on the evidence properly before this Court.
[19] In the absence of contrary expert evidence, the Court is entitled to accept the
unchallenged expert opinion where it is founded upon a logical and reasoned basis.
Dr Krüger records that the plaintiff sustained a traumatic brain injury characterised by
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loss of consciousness and post -traumatic amnesia. He further records the
subsequent development of seizures with classic generalised features — loss of
consciousness, tonic-clonic activity, tongue biting, urinary incontinence and post-ictal
confusion — and ongoing treatment with Epilim. The diagnosis of epilepsy is thus not
a bare conclusion but is grounded in clinical history and subsequent treatment. It is
trite that epilepsy is primarily a clinical diagnosis; a normal CT scan does not exclude
it.
[20] The plaintiff had no prior history of seizures and no alternative cause for the
epilepsy was suggested. In these circumstances, the Court is required to determine
whether the expert’s reasoning is logical and whether, on a balance of probabilities,
the inference drawn is justified. The inference that the epilepsy is causally related to
the traumatic brain injury is medically plausible and remains uncontradicted.
[21] Delayed onset post -traumatic epilepsy is medically recognised. The mere
lapse of time between injury and manifestation does not, without more, negate
causation. In the absence of any competing hypothesis or evidence of an intervening
cause, the causal nexus remains the most probable inference on the totality of the
evidence.
[22] I am therefore satisfied that the plaintiff has established, on a balance of
probabilities, that he suffers from chronic epilepsy causally related to the injuries
sustained in the accident.
Quantum
[23] A claim for general or non -patrimonial damages requires an assessment of
the plaintiff’s pain and suffering, disfigurement, permanent disability and loss of
amenities of life and attaching a monetary value thereto. The exercise is, by its very
nature, both difficult and discretionary with wide-ranging permutations.
[24] It is very difficult, if not impossible, to find a case on all four with the one to be
decided. The oft -quoted case of Southern Insurance Association v Bailey NO2
decided. The oft -quoted case of Southern Insurance Association v Bailey NO2
confirmed that even the Supreme Court of Appeal had difficulties in laying down
rules as to the way in which the problem of an award for general damages should be
2 Southern Insurance Association v Bailey NO 1984 (1) SA 98 AD.
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approached. The accepted approach is the "flexible one" described in Sandler v .
Wholesale Coal Suppliers Ltd,3 namely:
"The amount to be awarded as compensation can only be determined by the broadest
general considerations and the figure arrived at must necessarily be uncertain,
depending on the Judge's view of what is fair in all the circumstances of the case".
[25] In respect of the issue of comparable cases and the guidance provided
thereby, the Supreme Court of Appeal has stated in Protea Assurance Co Ltd v
Lamb:4
"Comparable cases, when available, should rather be used to afford some guidance, in
a general way, towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous awards in broadly similar cases,
regard being had to all the factors which are considered to be relevant in the
assessment of general damages. At the same time it may be permissible, in an
appropriate case, to test any assessment arrived at upon this basis by reference to the
general pattern of previous awards in cases where the injuries and their sequelae may
have been either more serious or less than those in the case under consideration".
[26] The comparative authorities relied upon by the parties illustrate the general
pattern of awards in matters involving traumatic brain injury. They confirm that the
assessment is driven not only by the initial classification of the injury but also by
proven long-term sequelae, including cognitive impairment, functional limitation and
the effect on independence and quality of life.
[27] Recently in R.S v Road Accident Fund ,5 the Free State Division recorded that
the plaintiff sustained a severe traumatic brain injury together with multiple
orthopaedic and internal injuries and awarded R1 800 000.00 in general damages.
In Van Tonder v Road Accident Fund ,6 the Gauteng Division awarded R1 500
000.00 in general damages in a matter where the plaintiff sustained a severe head
000.00 in general damages in a matter where the plaintiff sustained a severe head
injury complicated by epilepsy, multiple rib fractures, lacerations to the left knee and
foot, and a pelvic fracture involving the left pubic ramus extending into the
3 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
4 Protea Assurance Co Ltd v Lamb 1971 SA 530 at 536 A-B.
5 R. S v Road Accident Fund (5233/2023) [2025] ZAFSHC 68 (20 February 2025).
6 Van Tonder v Road Accident Fund (2023/013183) [2024] ZAGPJHC 1009 (7 October 2024).
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symphysis. At the lower end of the spectrum, in Vukeya v Road Accident Fund,7 the
Gauteng Division awarded R330 000.00 (now around R600 368.00 according to
counsel) in respect of a mild to moderate brain injury and some orthopaedic and soft
tissue injuries, with residual sequelae, like chronic headaches and depression.8
[28] These decisions demonstrate a broad contemporary range. Matters involving
significant brain injury with established epilepsy and substantial long -term
neurological consequences attract awards in the region of R1.5 million to R1.8
million. Cases involving milder traumatic brain injury without comparable long -term
complications fall materially below that level.
[29] The present matter involves a moderate traumatic brain injury complicated by
chronic epilepsy with ongoing seizures, persistent cognitive dysfunction, bilateral
upper limb orthopaedic impairment, permanent disfigurement and measurable loss
of independence, including the inability to drive. While serious, the evidence does
not place the plaintiff in the category of the most extreme cases reflected in the
higher awards referred to above. At the same time, the presence of chronic epilepsy
and enduring cognitive impairment distinguishes this matter from cases at the lower
end of the range.
[30] Having regard to the totality of the plaintiff’s injuries and their proven
sequelae, and guided by the general pattern emerging from comparable authority, I
am satisfied that an award of R1 100 000.00 constitutes fair and reasonable
compensation for the plaintiff’s pain and suffering, disability, disfigurement and loss
of amenities of life.
[31] I will therefore insert this amount into the draft order provided, wherein the
other aspects of the plaintiff’s claims and costs have been catered for.
Order
[32] The draft order, as amended, marked "X" is made an order of the court.
7 Vukeya v Road Accident Fund 2014 [7B4] QOD 1 (GNP).
8 Also see: Stermis v Road Accident Fund 2010 (6B4) QOD 26 (WCC).
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___________________________
CARELSE AJ
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Date of hearing: 2 March 2026
Judgment delivered: 3 March 2026
For the Plaintiff: Adv A Ras
instructed by Snyman Lotz Inc.
For the Defendant: T Gaokgwathe (Ms)
instructed by The State Attorney, Pretoria
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