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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 5422/2023
In the matter between:
ADV ETTIENNE ERNEST BARLOW N O PLAINTIFF
(In his capacity as Curator ad Litem on behalf of
L[...] K[...] L[...] L[...])
and
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Adv Ettienne Ernest Barlow N O v The Road Accident Fund
(5422/2023) [2026] ZAFSHC 102 (19 March 2026)
Coram: LOUBSER J
Heard: 14 November 2025
Delivered: 19 March 2026
Summary: Claim against RAF for fu rther loss of earnings on behalf of young
man who had struggled academically before the accident which occurred when he was
eleven years old – higher contingency applied.
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ORDER
______________________________________________________________________
The draft order is made an order of court, as amended.
1 The defendant shall pay an amount of R2 279 422 in respect of f uture loss of
earnings of the plaintiff's claim, payable within 180 days from the date of this order.
2 The defendant shall pay the amount referred to in paragraph 1 above into the
trust account of the plaintiff’s attorneys being as follows:
ACCOUNT HOLDER: RAMAKGWAKGWA ATTORNEYS
ACCOUNT NUMBER: 0[…]
BANK: STANDARD BANK
BRANCH: JOHANNESBURG
BRANCH CODE: 0020500
3 The defendant is ordered to pay the plaintiffs taxed or agreed party and party
costs on the High Court scale, which costs within the discretion of the taxing master
shall include, but not be limited to the following:
(a) The costs of counsel on scale B which includes the costs of the 04 th 05th and
07th of November 2025 (including preparations for trial);
(b) The costs of curator ad litem;
(c) The costs of the following e xperts’ witnesses employed by the plaintiff to
quantify his claim:
(i) Neurosurgeon — Dr Akhona Mazwi
(ii) Clinical Psychologist— Lufuno Modipa
(iii) Educational Psychologist — Andile Moyo
(iv) Occupational therapist — Lawrence Makananisa
(v) Industrial Psychologist — Clement Bell
(vi) Actuary — David Mureriwa
(d) The costs for instructing correspondent attorneys;
(e) The costs of preparing all the trial bundles; if any
(f) The costs of obtaining the medico-legal reports that were served on or provided
to the defendant including addendum reports;
(g) The reasonable costs of necessary consultations with the said experts and
reasonable taxable travelling and accommodation costs of plaintiff for attending medico-
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legal experts;
(h) The reasonable costs of establishing and administering the Trust referred to in
paragraph 5 below;
(i) The reasonable costs for furnishing security to the satisfaction of the Master of
the High Court in respect of the Trust referred to in paragraph 5 below.
4 The net amount which is due to the plaintiff after the necessary deductions which
are due to the plaintiff ’s attorneys, shall be payable to a trust account, which shall be
established for the sole benefit of " L[...] K[...] L[...] L[...]" and which trust shall be
established within 6 months of the date of this order, and which shall have the main
objective, of controlling and administering the capital amount on behalf of " L[...] K[...]
L[...] L[...]"
5 The trust to be formed on behalf of L[ … ] K[…] L[… ] L[…] shall not be resolved
otherwise than with an order made by this Honourable court.
6 Should the aforementioned Trust not be established within the six -month (6)
month period, the p laintiff is directed to approach this C ourt within one (1) month
thereafter, in order to obtain further directives in respect of the manner in which the
capital amount is to be utilised in favour of the plaintiff.
7 Until such time that the trust has not been established, the p laintiff’s attorneys
are authorised to withhold the capital amount in the a ttorneys’ trust account until a trust
for the plaintiff is formed.
8 In the event the plaintiff’s costs are not agreed, the plaintiff shall serve a notice
of taxation on the d efendant's attorneys. The p laintiff shall allow the d efendant one
hundred and eight (180) court days to make payment of taxed costs.
9 The plaintiff’s claim on general damages and past and future medical and
hospital expenses is postponed to the pre-trial roll on a date to be arranged between the
parties.
JUDGMENT
_______________________________________________________________________
Loubser J
[1] In this matter the court has to decide the future loss of earnings of
Mr. L. K. L.
[1] In this matter the court has to decide the future loss of earnings of
Mr. L. K. L.
L[...] following the injuries he sustained on 20 December 2016 in a motor
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vehicle accident which occur ed in Seeiso Street, Phaham eng, Bloemfontein. He was
only 11 years old at the time, and was hit by a vehicle that was driving on the wrong
side of the road when he was in the process of crossing the road as a pedestrian.
[2] Mr. L[...] is represented by a duly appointed curator ad litem since he is unable
to pursue his own claim by reason of the injuries he sustained. When the matter came
before this C ourt on 7 November 2025, it was ordered that, in terms of Rule 33 (4) of
the Uniform Rules of Court, the claim for general damages, future medical and hospital
expenses and past medical and hospital expenses be separated from the claim for loss
of income, and that the court would only proceed to decide the claim for loss of income.
The remainder of the issues stood over for later adjudication. On a prior occasion, the
court made an order that the defendant is 100 % liable for the damages suffered by Mr.
L[...]. In the order of 7 November 2025, the court also granted an application in terms of
Rule 38(2) by agreement between the parties, and after the court heard the evidence of
Mr. L[...]’s father.
[3] In the accident, Mr. L[...] suffered serious injuries, to wit a moderate head injury,
a fracture of the skull and brain haemorrages, leading to cognitive and emotional
deficits. According to the expert reports presented by the plaintiff, in terms of Rule 38(2),
Mr. L[...] is now considered to be unemployable. This is so because his injuries have
significantly impacted on his cognitive functioning, making it difficult for him to cope
academically. He was in grade 3 when the accident happened, but he returned to
school afterwards. However, he was unable to cope academically with the result that he
failed grade 7 on more than one occasion. He made no further progress at school and is
currently not schooling and is unemployed. Since the accident, Mr. L[...] has difficulty
with focusing, he has recurrent headaches, he easily forgets, and he experiences
with focusing, he has recurrent headaches, he easily forgets, and he experiences
epileptic fits.
[4] It further transpires from the expert reports that Mr. L[...] is unable to do work
using heavy machinery or requires him to go up onto heights. His inability to reach
educational progression renders him an unequal contender in the labour market, and it
is therefore unlikely that he would secure any gainful employment. He is in need of
constant support and supervision. On the other hand, the educational psychologist
assessed that, before the accident, his baseline functioning was already below average,
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evidenced by his documented academic struggles in grade 1 and 3. The psychologist
added that Mr. L[...]’s realistic ceiling might have been a matric pass (NFQ level 4) . It
was postulated in this respect that he would have entered the job marked at age 23 –
25 and would have seen earning progression to the age of 45 with his highest income at
that age. He would remain in the labour market until normal retirement age of 65,
depending on various factors.
[5] The industrial psychologist determined that despite Mr. L[...]’s cognitive
difficulties before the accident, he would still have been able to pursue a career of his
choice depending on his motivation and support.
[6] These findings of the experts presented by the plaintiff remain undisputed since
they were placed before the court by agreement in terms of Rule 38(2). The defendant
itself did not present any expert reports to the court.
[7] It needs mentioning that the industrial psychologist rendered an addendum
report on 29 October 2025 in which he indicated that Mr. L[...] has already reached
maximal medical improvement. Notwithstanding, the accident has left him incompetent
at school and unemployable in most physical activities because he suffers from epileptic
seizures. He is most likely to only secure sympathetic employment, which means that
he is generally unemployable, the industrial psychologist opined.
[8] The educational psychologist also presented an addendum report on
28 October 2025. The academic records of Mr. L[...] showed that he was promoted to
grade 4 due to his age rather than academic merit. Prior to the accident, he had to
repeat grade 1. His early difficulties indicate challenges with reading, writing or
attention. The fundamental implication hereof is that the accident is not the sole cause
of his academic struggles, but rather an event that exacerbated a pre- existing learning
difficulty. This dis tinction is crucial for understanding his current needs, long- term
difficulty. This dis tinction is crucial for understanding his current needs, long- term
prognosis, and for any legal or educational claims, particularly when determining which
deficits were caused by the accident versus those that were already present, the
educational psychologist found.
[9] Having regard to the additional information, the actuary recalculated his figures
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and presented an amended report on 30 October 2025. In this report, the actuary
assumed nil earnings for Mr. L[...] for the rest of his career, but he also assumed that he
would have completed grade 12 in 2025 if it was not for the accident. At the age of 24,
he would then have entered the open labour market at an earning level of R88 000.00
per annum, increasing to R258 000.00 per annum at age 45, until his retirement at age
65. He then calculated the net future loss to be R3 799 036.00, and after applying a
contingency of 15% for illustrative purpose, he arrived at a sum of R3 229 181.00 for
Mr. L[...]’s total loss of earnings.
[10] After the actuarial calculations were done, it was established that Mr. L[...] now
receives a permanent disability grant, with effect from October 2025 onwards. This
grant appears to be in the sum of R2 320.00 per month, which equates to R27 840.00
per annum. The question whether this grant should be taken into consideration when a
final award is made, will be addressed later herein.
[11] For the moment, however, it has to be pointed out that should it be assumed
that Mr. L[...] would receive the grant until age 65, the total amount of the grant would
equate to R1 222 860.00 over a period of 44 years and 5 months. Presently, this figure
is not factored into any calculation before the court.
[12] The position is then that the court will now first proceed to consider the
contingencies to be applied without any regard to the grant Mr. L[...] is receiving. As we
have seen, the actuary’s calculations are based on his assumption that Mr. L[...] would
have completed grade 12 in 2025 if it was not for the accident. He would then have
entered the labour market at age 24 earning certain income until age 65. In my view,
this assumption is not supported by the expert evidence before the court. The reality is
that Mr. L[...] made very little progress at school even at the lower grades before the
that Mr. L[...] made very little progress at school even at the lower grades before the
accident occurred. The possibility that he would ever have reached the stage of grade
12 on merit, had the accident not occurred, is only a very slim possibility on the
probabilities. The projected future loss of R3 799 036.00 will therefore have to be
reduced by applying a higher contingency than the 15% applied by the actuary for
illustrative purposes.
[13] This view finds further support in the remarks of Daffue, J in the matter of Berry
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N.O. obo P v Road Accident Fund: 1 ‘One must be realistic and experts in particular
should be warned not to be subjective and try to be too generous when reporting on the
pre-morbid career prospects of plaintiffs. Our country is in a financial crisis and our
employment rate is in excess of 25%; even higher under the youth. Many people with
grade 12 certificates, even university degrees, are unemployed. The future is bleak for
the majority of our young people.’
[14] Further support in the application of a higher contingency is found in the sliding
scale where higher contingencies are provided for a y outh, as referred to by Koch in
The Quantum Yearbook. In the present matter there are, in my view, no material basis
to depart from this principle. A pre- morbid contingency deduction of 35% is therefore
justified in the present case.
2
[15] The question of the grant that Mr. L[...] is currently receiving, remains to be
settled. This question has already received the attention of a court of this Division in the
matter of R.S. v Road Accident Fund .
3 The court held that the disability grant which is
currently being paid to the plaintiff, is not to be deducted from the damages in respect of
loss of income to be awarded to her, for two reasons. The first is that a disability grant is
paid to a person as a result of the Constitutional obligation of the state, and not as a
result of a delict which caused the disability of the person. Secondly, it is probable that
the plaintiff will not qualify for the grant any more after receipt of the award made
against the Road Accident Fund.
[16] I agree with the judgment in R.S. v Road Accident Fund. Consequently, the
amount of the grant will not be deducted from the damages in respect of loss of income
to be awarded in the present case. However, I will increase the contingency deduction
by 5% to cater for the potential of Mr. L[...] receiving double compensation in the future,
by 5% to cater for the potential of Mr. L[...] receiving double compensation in the future,
or double compensation for certain periods only in the future. The total pre- morbid
contingency deduction will therefore amount to 40% of the R3 799 036 future loss of
income postulated by the actuary, which will amount to compensation of R2 279 422.00.
[17] The plaintiff has provided the court with a draft order, which stands to be
1 Berry N.O. obo P v Road Accident Fund [2018] ZAFSHC 117 at para 17.
2 See for example Khan v Road Accident Fund [2025] ZAGPJHC 338.
3 R.S. v Road Accident Fund [2025] ZAFSHC 68 paras 51, 132 and 136, per Van Zyl, J.
8
amended by the court in order to reflect the above figures.
[18] The following order is made:
The draft order is made an order of court, as amended.
1 The defendant shall pay an amount of R2 279 422 in respect of future loss of
earnings of the plaintiff's claim, payable within 180 days from the date of this order.
2 The defendant shall pay the amount referred to in paragraph 1 above into the
trust account of the plaintiff’s attorneys being as follows:
ACCOUNT HOLDER: RAMAKGWAKGWA ATTORNEYS
ACCOUNT NUMBER: 000[…]
BANK: STANDARD BANK
BRANCH: JOHANNESBURG
BRANCH CODE: 0020500
3 The defendant is ordered to pay the plaintiffs taxed or agreed party and party
costs on the High Court scale, which costs within the discretion of the taxing master
shall include, but not be limited to the following:
(a) The costs of counsel on scale B which includes the costs of the 04
th 05th and
07th of November 2025 (including preparations for trial);
(b) The costs of curator ad litem;
(c) The costs of the following experts ’ witnesses employed by the plainti ff to
quantify his claim:
(i) Neurosurgeon — Dr Akhona Mazwi
(ii) Clinical Psychologist— Lufuno Modipa
(iii) Educational Psychologist — Andile Moyo
(iv) Occupational therapist — Lawrence Makananisa
(v) Industrial Psychologist — Clement Bell
(vi) Actuary — David Mureriwa
(d) The costs for instructing correspondent attorneys;
(e) The costs of preparing all the trial bundles; if any
(f) The costs of obtaining the medico-legal reports that were served on or provided
to the defendant including addendum reports;
(g) The reasonable costs of necessary consultations with the said experts and
reasonable taxable travelling and accommodation costs of plaintiff for attending medico-
legal experts;
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(h) The reasonable costs of establishing and administering the Trust referred to in
paragraph 5 below;
(i) The reasonable costs for furnishing security to the satisfaction of the Master of
the High Court in respect of the Trust referred to in paragraph 5 below.
4 The net amount which is due to the plaintiff after the necessary deductions which
are due to the plaintiff ’s attorneys, shall be payable to a trust account, which shall be
established for the sole benefit of " L[...] K[...] L[...] L[...]" and which trust shall be
established within 6 months of the date of this order, and which shall have the main
objective, of controlling and administering the capital amount on behalf of " L[...] K[...]
L[...] L[...]"
5 The trust to be formed on behalf of L[ … ] K[…] L[… ] L[…] shall not be resolved
otherwise than with an order made by this Honourable court.
6 Should the aforementioned Trust not be established within the six -month (6)
month period, the plaintiff is directed to approach this Court within one (1) month
thereafter, in order to obtain further directives in respect of the manner in which the
capital amount is to be utilised in favour of the plaintiff.
7 Until such time that the trust has not been established, the plaintiff ’s attorneys
are authorised to withhold the capital amount in the attorneys ’ trust account until a trust
for the plaintiff is formed.
8 In the event the plaintiff’s costs are not agreed, the plaintiff shall serve a notice
of taxation on the defendant's a ttorneys. The plaintiff shall allow the defendant o ne
hundred and eight (180) court days to make payment of taxed costs.
9 The plaintiff’s claim on general damages and past and future medical and
hospital expenses is postponed to the pre-trial roll on a date to be arranged between the
parties.
________________________
P.J. LOUBSER
JUDGE OF THE HIGH COURT
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Appearances
For the plaintiff: L Tlelai
Instructed by: Ramakgwakgwa Attorneys Inc.,
Johannesburg
c/o M M Hattingh Attorneys,
Bloemfontein
For the first defendant: J Gouws
Instructed by: State Attorney,
Bloemfontein.