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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 14175/13
REPORTABLE
In the matter between:
V[...] V[...] N[...] FIRST PLAINTIFF
R[...] V[...] N[...] SECOND PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: BHOOPCHAND AJ
Heard: 9 September 2025, 24,25 November 2025, 23 March 2026
Final submissions received: 30 March 2026
Delivered: 13 April 2026
Summary: Claim for restitutio in integrum on a compromise agreement of
settlement for damages suffered by a minor in an accident. Defendant raised a
special plea that the matter was finalised and settled . The Plaintiffs’ present
claim is not a repetition of the original deli ctual claim, but a distinct remedial
claim for restitution as the original settlement was substantially prejudicial to
the interests of a minor. The validity of the compromise is therefore the central
issue. If the compromise is upheld, the special plea succeeds. If t he compromise
is set aside, the special plea necessarily fails. The special plea is thus not a
discrete defence capable of determination independently of the restitution
inquiry, but one that is entirely contingent upon the outcome of that inquiry.
Plaintiffs’ case modelled upon Road Accident Fund v Myhill NO 2013 (5) SA
399 (SCA) . Principles of restitutio in integrum applied to the facts in the
Plaintiffs' case. Key differences militate against granting restitution. Reliance on
Myhill is misplaced. In the circumstances, the compromise agreement entered
into between the First Plaintiff and the Defendant in 2008 is upheld , the
Defendant’s special plea is upheld, and the Plaintiffs' claim for restitution is
dismissed.
ORDER
1. The Defendant’s special plea that the Plaintiffs' claims against it were finalised
and settled is upheld.
2. The Plaintiffs' claim for restitutio in integrum is dismissed.
3. Each party shall pay their own costs.
JUDGMENT
Bhoopchand AJ:
DEFENDANT’S SPECIAL PLEA
[1] The First Plaintiff, V[...] V[...] N[...] (‘the mother’), is the mother of the
Second Plaintiff, R[...] V[...] N[...] (‘R[...]’). R[...] was added as a Plaintiff
during the trial in this matter as he had attained the age of majority. 1 The
Second Plaintiff, born on 11 January 2003 , was involved in an accident on 20
May 2004. He was 16 months old. A neighbour’s vehicle reversed into him. The
Second Plaintiff sustained an extensive laceration to his forehead and
subsequently developed epileptic seizures. The First Plaintiff settled her claim
for general damages against the Defendant in August 2008 for R93 800.2
[2] The First Plaintiff issued summons on 29 August 2013 against the
Defendant. The Plaintiffs alleged in their particulars that the compromise of the
Second Plaintiff’s claim with the Defendant was substantially prejudicial to the
interests of the Second Plaintiff, who was a minor at t he time. The Plaintiffs
alleged that the settlement was prejudicial from its inception and bore no
realistic relationship to the measure of damages claimable for the bodily injuries
sustained by the Second Plaintiff. They contend that the Second Plaintiff is
entitled to restitutio in integrum and that the compromise agreement be set
aside. They tendered repayment of the R93 908.
[3] The Defendant raised a special plea to the Plaintiffs’ claim. They asserted
that the Plaintiffs ’ claim for damages was finalised between the parties in
August 2008. The Defendant asserted that the Plaintiffs’ new clai m for
restitution and damages is a claim based on the same medical grounds and
1 The Plaintiffs applied for Rogen’s substitution as the Plaintiff in the matter. This application was
granted. Subsequently, it emerged that Rogen was added as a second Plaintiff. To the extent that it is
necessary for the Court to garnt the proper order, the application to add Rogen as the Second Plaintiff
under Rule 15 is granted.
under Rule 15 is granted.
2 The details of the settlement included R80 000 for general damages, R7908 as a contribution towards
three medicolegal reports, R6 000 towards the attorneys’ fees and a full section 17(4)(a) undertaking
for future medical expenses
evidence previously available against the same Defendant. The Plaintiffs were
obliged to claim all the remedies sought in the claim lodged by their previous
attorneys.
[4] The Plai ntiffs’ case is founded on a single cause of action, namely the
rescission of the compromise based on restitutio in integrum on account of
alleged substantial prejudice to the Second Plaintiff. Restitutio in integrum is a
specific equitable remedy, histori cally rooted in Roman ‑Dutch law, available
only in exceptional circumstances , including where a compromise has
prejudiced a minor . Restitution is a general concept ; it returns parties to their
pre‑contractual position, often used in unjust enrichment or rescission contexts .
However, as shorthand, the remedy sought by the Plaintiffs shall be referred to
as restitution for convenience.
[5] The wording of the Defendant’s special pl ea would suggest that it
invokes the doctrines of res judicata or lis alibi pendens. Neither doctrine is
applicable. The Court regards the special plea as a conventional compromise
defence. The Defendant asserts that the delictual claim was finally settled in
2008 and that the compromise extinguished the original cause of action. The
Defendant asserts that the present action constitutes an impermissible attempt to
re‑litigate the same cause of action . The Defendant presupposes the validity of
the compromise. The Plaintiffs’ present claim is not a repetition of the original
delictual claim , but a distinct remedial claim for restitutio n as the original
settlement was substantially prejudicial to the inter ests of a minor. The validity
of the compromise is therefore the central issue.
[6] If the compromise is upheld, the special plea succeeds. If the compromise
is set aside, the special plea necessarily fails. The special plea is thus not a
discrete defence capable of determination independently of the restitutio n
inquiry, but one that is entirely contingent upon the outcome of th at inquiry.
The parties accepted these propositions, and the Court proceeded to hear the
Plaintiffs' case on recission and restitution of the 2008 settlement agreement.
BACKGROUND FACTS
[7] The Second Plaintiff was involved in an accident and suffered a head
injury. A claim was instituted against the Defendant by Enslin Meyer attorneys.
Enslin Meyer was properly authorised to institute and settle the Plaintiffs' claim.
The RAF1 form, completed a day after the accident, reflected that compensation
of R100 000 was claimed for general damages alone. No claim was made for
loss of earnings o r medical expenses. The Defendant made an initial offer of
R13 800 on 4 July 2007. The offer comprised R14 000 for general damages,
apportioned by 30% to R 9800. A further R4000 was offered as a contribution
towards Enslin Meyer’s fees.
[8] Enslin Meyer requested the Defendant on 24 July 2007 to abandon the
apportionment and to increase the offer on general damages to R20 000. The
Defendant communicated with Paul David s (‘Davids’) of Enslin Meyer on 12
September 2007 that it did not intend to reduce the apportionment . David
informed Lameez Modack (Modack), the Claims Handler, that he intended to
obtain medico -legal reports. Davids rejected the apportionment as the minor
was doli incapax. Davids provided the Defendant with the medicolegal reports
of a Neurosurgeon, a Plastic Surgeon and an Ophthalmologist on 4 April 200 8.
He proposed that the claim for general damages should be increased to
R150 000 as the accident contributed to the Second Plaintiff’s epileptic seizures
and caused the permanent scarring on his forehead. Davids also sought future
medical expenses of R51 000. On 15 July 2008 , Davids wrote to Johan Tolken
(‘Tolken’), who was Modack’s senior at the Defendant. He contended that the
30% apportionment applied to the proposed settlement of the claim, and by then
attributed to the mother’s alleged negligence for failing to discharge her
parental duties properly, was unsustainable.
[9] Davids proposed ‘purely for settlement purposes ’ that Enslin Meyer was
prepared to recommend to the First Plaintiff acceptance of an amount of
R90 000 together with an undertaking for future medical expenses, a
contribution towards the costs of the medicolegal reports and a contribution of
R6000 towards their costs. Tolken communicated with Modack to remove the
apportionment and increase the costs as rec ommended by Davids. The revised
offer of R 93 908 was made on 16 July 2008. It was accepted on behalf of the
First Respondent on 25 July 2008. The First Plaintiff accepted the undertaking
on 17 November 2008.
THE PLAINTIFFS’ ORIGINAL MEDICOLEGAL REPORTS
[10] As the claim was premised upon the nature, severity, and sequelae of the
head injury suffered by the Second Plaintiff in the accident , it is necessary to
consider the opinion expressed by the Neurosurgeon, Dr Parker , in his re port
dated 2 November 2007. Enslin Meyer instructed Dr Parker to assess the
Second Plaintiff’s head injury. The Claims Handler considered his completed
report when she made the Defendant’s final offer of settlement.
[11] Dr Parker had access to the RAF1 form, an ambulance report, a
completed J88 form, the Day Hospital clinical notes, and the Red Cross
Hospital notes about the Second Plaintiff . He also had a consultation with the
Second Plaintiff. The medical report included in the RAF1 form, completed by
Dr Noah, coded the Second Plaintiff’s head injury as ‘minor’. There was no
clinical skull fracture and no bony injury on X-ray. The doctor noted the
extensive forehead laceration , which was sutured. He did not elicit any
localising signs suggestive of brain injury. Dr Noah did not anticipate any
permanent disability or foresee future medical treatment . The Day Hospital
clinical notes documented an epileptic attack, described as a focal fit of the head
and tongue, on 14 October 2006. The attending doctor noted that the Second
Plaintiff also suffered febrile seizures on two occasions. 3 Further evidence of
epileptic attacks was documented in an ambulance report. The Red Cross
Hospital notes a referral fo r a focal seizure on 15 October 2006. The First
Plaintiff had described the Second Plaintiff becoming stiff and unresponsive,
with pulling of the eyes and face. There were no generalised tonic -clonic
movements or urinary incontinence. R[...] was seen in 200 4 with febrile
seizures (the note does not clarify if these were before or after the accident ,
although the subsequent Neurology report under Dr Tucker’s name,
documented a history of a febrile seizure at eight months of age ). A CT Scan
and lumbar puncture done on 15 October 2006 were normal.
[12] Dr Parker consulted with R[...] on 19 October 2007. R[...] was four years
and nine months old at that time. The accident had occurred three years and five
months previously. The mother provided the history . R[...]’s early
developmental milestones were normal. R[...] attended creche and was due to be
enrolled for grade 1 in 2008. R[...] began experiencing headaches and some
epileptic attacks soon after the accident. Dr Parker documented the family
history. The mother had a standard six education, and the biological father, who
passed matric, saw R[...] daily. He ran a business selling fish and vegetables. Dr
Parker examined R[...]. He confirmed the prominent forehead scar . Dr Parker
established that R[...] did not have any focal or long-tract signs (indicating brain
or spinal cord damage manifesting in positive peripheral neurological signs on
clinical testing).
3 The Red Cross Hospital notes also refer to two episodes of febrile seizures in 2004. The notes do not
say whether the seizures predated the accident.
[13] Dr Parker’s assessment indicated that R[...] was not rendered unconscious
on the accident scene but was emotionally shocked . Dr Parker described the
epileptic seizures suffered by the Second Plaintiff as a fit of the akinetic type,
meaning that R[...]’s arms and legs did not shake. Dr Parker did not interrogate
the history of febrile seizures, which occurred in 2004, and whether these febrile
seizures predated the accident. The last epileptic seizure reported to Dr Parker
occurred in December 2006.
[14] Dr Parker stated that R[...]’s case was complicated by the history of
febrile seizures, which suggested that R[...] had a brain vulnerable to seizures.
He questioned whether the accident on its own caused the seizures or whether
they manifested from a vulnerable brain. He opined that if a head injury does
not result in unconsciousness or cause a fracture of the skul l, the risk for
developing epilepsy is small. He predicted that , as febrile seizures abate after a
child attains the age of six years, so do post -traumatic seizures, although at a
later date . Dr Parker suggested that the Second Plaintiff receive treatment for
fifteen years after the onset of the fits . Dr Parker did not expect any
neuropsychological fallout in this kind of case, and he did not think that a
neuropsychological assessment was necessary.
[15] Dr Bruce-Chwatt, a Plastic Surgeon, also assessed the Second Plaintiff .
Dr Bruce-Chwatt consulted with the mother and child on 5 January 2008. He
described the forehead scar as a 12.5x 0.2 -0.3cm flat, soft, shiny scar extending
in a curved line from the medial end of the left eyebrow over and into the
hairline on the right. The scar was stable and of good quality. The scar was
visible when R[...]’s hair was cut short. It wa s a significant scar as it would
always be noticeable. Dr Bruce -Chwatt opined that the scar will not be
improved by any surgical revision. Dr Abrahamse, Ophthalmologist, consulted
with R[...] on 21 February 2008. He concluded after his examination that R[...]
had normal eyes and a functional visual system.
THE TESTIMONY
[16] Both Plaintiffs testified. Their third witness was a Mr Y[...] C[...], the
husband of the First Plaintiff but not the biological father of R[...].
V[...] V[...] N[...]
[17] Ms V[...] V[...] N[...] is the Second Plaintiff’s mother. She described how
the accident occurred and the injuries sustained by R[...]. R[...] was playing with
other children when the neighbour’s vehicle reversed into him. R[...] was kept at
the hospital for two hours . He was quiet and only began crying when he was
examined. R[...] began experiencing seizures about one to two years after the
accident. He r description of the seizures concurred with what she gave Dr
Parker. R[...] did not have seizures before that. The seizures were not like the
typical epileptic fit. R[...] would stare upwards, being oblivious to his
surroundings. The seizures occurred regularly until the R[...] attained the age of
14. He did not receive any treatment for the seizures. He was initially
investigated at Red Cross Hospital. He also develope d headaches. The
headaches worsened when R[...] began working at a butchery. He was
diagnosed with high blood pressure. The mother bought and provided R[...]
with paracetamol tablets for the headaches.
[18] The mother testified that R[...] left school between 2019 and 2020 when
he was 17 or 18 years of age after failing grade 11 twice. R[...] did not fail any
other grades. 4 During his schooling, he was called nicknames because of the
forehead scarring. After dropping out of school, R[...] was employed at Ola Ice
4 The subsequent medicolegal reports and Rogen’s testimony confirm another failure in grade 2.
cream as a truck assistant. R[...] then worked with his stepfather as a handyman
in the construction industry about two to three times per week , followed by a
job in the security industry. R[...] subsequently acquired a job a t DC Butchery
for about 8 -9 months as a general worker. The mother suggested in her
testimony that R[...] had not worked for two years. R[...] had a girlfriend with
whom he had a child.
[19] The mother was taken through the document ation leading to Enslin
Meyer’s settlement of her claim for R93 908 by her attorney. Enslin Meyer paid
her R60 000. She was referred to her present lawyer by a friend. Under cross-
examination, Counsel for the Defendant pursued further aspects of the
settlement documents. The mother admitted that she had claimed R100 000 in
the claim form submitted to the Defendant. 5 Aspects of Dr Parker's factual
findings and opinion were canvassed with the mot her. The mother stated that
R[...] had not been placed on anti -seizure medication. She denied that R[...]
suffered febrile seizures in his childhood or before the accident occurred.6
[20] V[...] N[...] was then taken through parts of the expert report compiled by
a reconstructive expert. The expert described the scar and recommended against
any revision. V[...] N[...] stated that the scar was still visible even when the
Plaintiff’s hair grew longer. Th e third report furnished to the Defendant by
Enslin Meyer was that of an Ophthalmologist. Dr Abrahams cross-referenced
Dr Parker’s report about the febrile fits that the Plaintiff allegedly suffered.
V[...] N[...] denied that the Plaintiff was diagnosed with febrile seizures.
[21] Counsel put it to the mother that the Defendant considered the
medicolegal reports submitted by Enslin Meyer before the final settlement was
offered. It was put to the mother t hat the amount offered was informed. V[...]
5 The amount reflected in the RAF1 form completed 1 day after the accident.
5 The amount reflected in the RAF1 form completed 1 day after the accident.
6 In the second set of medicolegal reports, the Neurologist attributes the history of Rogen’s first febrile
seizure at eight months to the mother.
N[...] declined to comment on these propositions. V[...] N[...] confirmed that
Enslin Meyer had conveyed the Defendant’s first offer of R13 800 to her. Enslin
Meyer informed her that they were going to reject the offer because it was too
little. It was then put to V[...] N[...] that the final offer was not subjected to an
apportionment. V[...] N[...] stated that she had seen the document containing the
final offer, which was in full and final settlement of her claim , but its contents
were not explained to her. She was told to sign; hence, she signed.7 The offer
was not explained to her as Counsel explained it in this Court. It was put to her
that the acceptance of the offer was in accordance with the special power of
attorney she gave Enslin Meyer. She accepted that she gave the attorney the
right to settle the case on her behalf. She accepted that the Defendant did no t
intend to prejudice both her and R[...], but stated that there was prejudice that
emanated from the offer.
[22] On questioning by the Court, V[...] N[...] stated that she had been to
Enslin Meyer a few times when he called her to attend. She was called twice
about the offers Enslin Meyers received from the Defendant. Enslin Meyer told
her to accept the R80 000 for general damages because she will not get more
than that. She was paid R60 000 in November 2008. V[...] N[...] was referred to
her current attorneys when R[...] was nine years old.
Y[...] C[...]
[23] He is a self -employed handyman. He is married to the mother and is t he
stepfather of R[...]. He has known R[...] since the age of three. He has two
biological children from Ms V[...] N[...]. He noticed that R[...] had sleeping
problems, nightmares and headaches. C[...] thought that R[...] was nagging for
unnecessary stuff until the mother explained that these were related to the
7 An inspection of the document indicates that the final offer was signed by Davids on behalf of Ms Van
Nee. Ms Van Nee signed the acceptance of the undertaking.
accident. R[...] had moved out of their house about three years ago. He testified
that th e only medication that R[...] took was paracetamol for his headaches.
R[...] was called nicknames because of the scar on his forehead. R[...] did not do
his school homework.
[24] C[...] took R[...] along to work with him about two to three times per
week after R[...] left school in grade 11. R[...] worked with him for about one
year. R[...] was forgetful, but his work was otherwise okay. R[...] complained of
headaches when he was on s ite. C[...] paid R[...] R200 a day when R[...]
worked. C[...] was adamant that R[...] could not work on his own. C[...]
confirmed R[...]’s employment history after R[...] had dropped out of school.
He also alluded to another job that R[...] had secured at the time of the trial. 8
Under cross-examination, C[...] testified that he knew nothing about the
settlement of R[...]’s claim. It was elicited from C[...] that R[...] lost his job at
the security company because he was sleeping at work and did not do the
rounds he was expected to do. While working at DC Meats, R[...] was given a
warning because he ate at the shop to relieve his headache.
R[...] V[...] N[...]
[25] R[...] testified. His testimony had to be paused because he became
emotional when relating certain incidents. The Court noted that the witness bit
his fingernails and the skin around them. R[...] was undergoing training at his
current job. He stated that he had to work. He did not have a choice as he had a
baby to support. He mentio ned that a supervisor had a problem with how he
performed in training. His girlfriend lives apart from him with her mother. He
helps with the child’s maintenance when he has money. He feels suicidal at
times and takes his frustrations out on the furniture, especially when he does not
8 Ms Van Nee did not allude to thius job in her testimony.
have money. He also fights with members of his family. He had scars on his left
hand from physical contact with the furniture and mirror.
[26] R[...] testified that he repeated grade 2. He left school while repeating
grade 11 becau se the work was difficult. His mother insisted that he go back
and complete school. He could not cope. His mother told him that the school
teachers thought he was a bit too slow to focus and to take down the work from
the board. His mother had to change ho mes repeatedly during his early primary
school years. His fellow learners made fun of his slowness and called him
nicknames when his hair was cut , and the scar was exposed. He felt like
someone who did not want to be at school. His forehead scar was pointe d out
and described for the record.
[27] It was evident that R[...] had a poor memory for dates and reasons. He
took his tests at school in the morning , as he was forgetful and would not
remember what he had learnt the previous night , later in the day. He did not
know why he lived with his aunt and away from his mother in Tafelsig. He was
dismissed from DC Meats after getting three warnings. He could not remember
when he left school . He remembers working for a security company, an ice
cream factory, for h is stepfather as a building assistant and at DC Meats , but
could not remember when he worked at these places.
[28] R[...] experienced dizzy spells and headaches when participating in
school sports. He suffered migraines and headaches all the time. They began o n
the left forehead and have since moved to the right side. He experiences
headaches every third day. He uses paracetamol and codeine preparations for
his headaches. The headaches endure for a day and a half but improve with
medication. His headaches were worse at school. He sometimes experienced a
seizure in class. He was told that he would stare at the light and bite his tongue.
He experienced the last seizure when he was at school. His mother would be
called to fetch him from school. He experienced severe headaches when he
worked for DC Meats. He also experienced a blackout there, and his mother had
to take him to the Day Hospital. He wants to sleep when he experiences
headaches.
[29] Under cross-examination, the witness was asked about his severe
hypertension referred to in Dr Tucker’s report. 9 He was asked about the opinion
expressed by Dr Tucker that his headaches were caused by his blood pressure or
migraines rather than any residue of the accident. A family history of migraines
on the mother’s side was documented in Dr Tucker’s report. R[...] denied
knowledge of the facts upon which Dr Tucker based this aspect of his report. He
confirmed that he smoked cigarettes and occasionally dagga. R[...] attended the
Day Hospital for his blood p ressure, but did not return immediately for further
evaluation. He attended later when the hospital commenced treatment and did
blood tests on him. R[...] feared that he would lose his job if he attended the
hospital. He had no knowledge a bout the undertaki ng provided by the
Defendant or that he could access medical attention, which would be paid for by
the Defendant. R[...] did not know about the initial negotiations or the
medicolegal reports that informed the final settlement of his claim in 2008 .
None of this was explained to him, even when he was added as a Plaintiff to the
new claim. The Plaintiffs closed their case after R[...]’s testimony.
LAMEES SALIE (MODACK)
[30] The Defendant called Ms Modack to testify. She was the Claims Handler
assigned to deal with the Plaintiffs ’ claim. She was taken through the
documentation relating to the settlement of the claim and referred to earlier in
this judgment. She indicated that the amount of R100 000 reflected in the RAF1
9 Dr Tucker is the Neurologist appointed by the Plaintiffs to support their new claim.
form reflected the attorney’s assessment of the claim. It d id not mean that the
claim from the Defendant’s perspective was worth R100 000. She considered
the content of her file, conceded the merits and made the offer of R14 000 in
full settlement of the claim on 4 July 2007. She had applied an apportionment of
30% and offered the attorney costs of R4000. The apportionment was based on
the mother not being at the accident scene to supervise the Second Plaintiff. The
first offer of settlement occurred without the benefit of medicolegal reports. She
considered the statutory medical report , which is part of the RAF1 form. The
report accounted for the 15cm laceration to R[...]’s forehead, his level of
consciousness, the absence of a skull fracture and vomiting , and the treatment
offered.
[31] Modack was asked to respond to the assertion that the claim was
prejudicial to the minor child and was unreasonable. Modack recounted the
various stages of her assessment of the claim, her correspondence with the
attorney, the advice given to her by Tolken, the medicolegal reports, the review
and lifting of the apportionment, the attorney’s final counterproposal and
concluded that the offer was reasonable.
[32] Under cross-examination, Modack indicated that she had an LLB degree
before she joined the Defendant and post-metric courses in occupational health
and safety. The hierarchy involved in claims handling was the manager, a senior
like Tolken and then the claims handler like her. There were a few teams of
claims handlers, each with a senior. Modack was taken through the Plaintiffs'
particulars. It was pointed out to her that an agreement of compromise was
concluded between the First Plaintiff and the Defendant. It was put to Modack,
in accordance with the pleadings , that the agreement of compromise was
substantially prejudicial to the interest of the minor when it was concluded. The
offer had no component for loss of earning capacity.
[33] Modack was taken to task about the apportionment envisaged in the
settlement of the claim. She agreed that there was no basis in law to apportion a
claim of a doli incapax minor. She was referred to a telephonic conversation the
attorney had with the senior, Tolken and was asked why the attorney
approached her senior. Modack testified that if an attorney was not sa tisfied
with a claim’s handler, they could approach her senior or the manager. Modack
was also challenged about the wording used by Tolken, i.e., that ‘the attorney
had called their bluff ’. Modack conceded that if the attorney did not object to
the impleme ntation of the apportionment, she and thus the Defendant would
have imposed it. She was then asked what was meant by ‘getting rid of this
attorney’. She conceded that there was a nuisance element implicit in that
phrase.10
[34] Modack was taken through the J 88 form as well as the Day Hospital
notes which concurred with the description of the injuries sustained by the
Second Plaintiff. Modack was taken through the entries in the clinical hospital
notes referring to R[...]’s epileptic seizures . She was then taken to Dr Parker’s
report which stated that he did not expect any neuropsychological fallout and
there was no need for a neuropsychological assessment regarding the accident -
related injuries. It was put to her that the Plaintiffs recent expe rt reports stated
that there could be neuropsychological fallout from this kind of injury. It was
put to Modack that responsible attorneys do not settle claims where there is a
subsequent risk of developing neuropsychological fallout from a head injury
suffered by a minor . Modack answered that there was a time period of three
years that elapsed between the date of the accident and when the claim was
10 Tolken’s email to Modack, dated 15 July 2008 stated: ‘We have to make an economic decision here. If
we proceed and join the mother, we will be throwing good money after bad. The attorney has called
our bluff and to settle I suggest we remove the apportionment, but retain the quantum as it stands. We
can also increase costs as requested by the attorney. I will sign. Lets get this offer out as soon as
possible so I can get rid of this attorney.’
settled. The settlement of the claim included the consideration of the expert
reports that were available to her. She was guided by what the experts said.
[35] It was suggested to Modack that the Defendant should have told the
attorney to wait before the claim was settled despite what Dr Parker said in his
report. It was put further that the Defendant should have obtained a
neuropsychological or speech therapy report on their initiative. Modack replied
that Enslin Meyer accepted what Dr Parker said and so did the Defendant.
Enslin Meyer wanted to settle the claim. It was suggested to Modack that the
neurosurgeon was not the appropriate expert and that the Defendant should have
considered Dr Parker’s report more critically. Modack defended her position by
referring to the findings made by Dr Parker and the attorney ’s decision n ot to
refer the Second Plaintiff to a N europsychologist. Modack accepted that the
Defendant was in a position to appoint, and could appoint a Neuropsychologist,
but in this case both the Defendant and Enslin Meyer did not think it necessary.
[36] It was suggested to Modack t hat a public body sho uld not take the
approach it did in this claim. She replied that the final offer of settlement did not
contain an apportionment. Modack was then taken to the Neurologist's report
obtained by the Plaintiffs’ present attorney. Dr Tucker considered the other
medical reports which identified significant neuropsychological behavioural
abnormalities which are consistent with the sequelae of a traumatic brain injury.
Modack accepted that the offer made did not include damages for significant
neuropsychological fallout as the Defendant did not have any expert report that
dealt with these aspects. Dr Tucker had identified four reasons why an expert
Neurologist could not assess the in itial injury including that there was no
specialised assessment of the Second Plaintiff’s level of consciousness, he did
specialised assessment of the Second Plaintiff’s level of consciousness, he did
not have the initial hospital records, there was no CT scan done, and the second
Plaintiff was only sixteen months old and would have not been able to describe
any anterograde amnesia. Dr Tucker confirmed his initial opinion that the
Second Plaintiff did have a concussive head injury and that he suffered a mild to
moderate brain injury. Dr Tucker thought that, absent an alternative compelling
reason, the neuropsychological behavioural changes were a sequela of the
accident-related injury. Modack agreed that if she had access to reports that
stated what the recent reports stated, she would have included it in the offer.
[37] Under further cross-examination, Modack confirmed that she had the
insured driver’s affidavit and was aware of how he described the accident when
she made the offer. The statement of eyewitness Galiema Moses was put to
Modack. Modack declined to comment on whether the offer was substantially
prejudicial to the Plaintiffs. On re -examination, Modack confirmed that she did
not think the offer was prejudicial to the Second Plaintiff. The claims handlers
request medical reports if there are disputes regarding the injury the claimant
sustained. There was no need for the Defendant to obtain their own reports in
this matter.
THE PLAINTIFS’ SECOND SET OF MEDICOLEGAL REPORTS
[38] The Plaintiffs commissioned a new set of medicolegal reports to support
their new claim. The reports were admitted as evidence under Rule 38(2) and
39(20) of the Uniform Rules of Court. It was understood that the content of
these reports would be used to r ecalculate the Second Plaintiff’s claim for
general damages and loss of earning capacity if the Plaintiffs surmounted the
compromise and obtained restitution. The relevant content of the Neurologist’s,
Speech Therapist ’s, Clinical Psychologist's, Educational Psychologist’s and
Industrial Psychologist’s reports shall be considered briefly.
[39] Neurologist, Dr Tucker (‘Tucker’), assessed the Second Plaintiff on three
occasions, namely 6 March 2015, 22 August 2025, and 3 September 2025. His
assessment of the clinical notes accorded with that of Dr Parker. The Second
Plaintiff’s epileptic seizures progressed beyond Dr Parker’s report. Mrs V[...]
N[...] reported in October 2013 that R[...] continued to suffer seizures at the rate
of about 1 per month . Tucker suggested that R[...] had a vulnerable brain and
that the collision may have impacted this brain to give rise to epilepsy, mild and
infrequent as it was. He affirmed Dr Parker’s general statement that if a head
injury does not result in unconsciousn ess and does not cause a fracture, the
chances of post-traumatic epilepsy are very small. He expressed the opinion that
R[...]’s brain was not normal, but one susceptible to epileptic seizures caused by
the pre -existing febrile seizures. He agreed that the accident contributed to
R[...]’s development of epilepsy.
[40] As R[...] continued to manifest cognitive and behavioural abnormalities
and his scholastic performance appear ed to have been poor, Tucker
recommended neuro-psychometric testing . Tucker graded the brain injury
sustained by the Second Respondent as mild or moderate with focal onset
epilepsy. Tucker opined that R[...]’s severe hypertension at the time of the
follow-up consultation was unlikely to be related to any accident -related
traumatic brain or other injury. He referred R[...] to the Groote Schuur Hospital
Casualty Unit for investigation and management of this condition. Tucker
believed R[...]’s headaches more likely represent migrai nes and/or
hypertension-related headaches. Tucker added that unless a compelling
alternative explanation is identified to explain the significance of cognitive and
neuropsychological abnormalities identified by the other experts , it is
reasonable to regard these as sequelae of the accident-related head injury.
[41] Dr Dale Ogilvy, Speech and Language Therapist, assessed the Second
Plaintiff and provided t wo sets of reports dated 31 July 2014 and 19 January
Plaintiff and provided t wo sets of reports dated 31 July 2014 and 19 January
2025. She found that R[...] presented with mild disturbances of speech and
specific and significant cognitive -communicative deficits. The nature of his
difficulties comprised a deficit and not a delay. Despite R[...]’s head injury
being considered minor in severity, and considering the young age at which it
occurred, the nature and specific profile of his deficits were highly consistent
with traumatic brain injury, even mild brain injury . She opined that R[...]’s
speech and cognitive -communicative deficits would cause him to struggle in
any form of future employment requiring communication and that this, together
with his truncated educational opportunities, would significantly alter and
curtail his future vocational opportunities.
[42] Dr Ogilvy documented the truncated tenure of R[...]’s employment
history. She stated that these problems will , unfortunately, follow R[...]
wherever he goes and will likely result in him having severe difficulty
sustaining employment. He may remain u nemployed for most of his life . R[...]
continued to present with significant cognitive -communicative deficits and
significant expressive and receptive communication impairments, and the nature
of his cognitive -communicative deficits and communication impairments has
remained the same over a long period of time.
[43] Mignon Coetzee (‘Coetzee’), a Clinical Psychologist , assessed the
Second Respondent and produced two reports on 15 November 2015 and 18
January 2025. On her first assessment, Coetzee found that R[...] had borderline
to low average intel ligence. Verbal memory, visual memory, and motor skills
were preserved. R[...] had significant difficulties with sustained attention and
concentration. In her second report, Coetzee reassessed R[...]’s intellectual
capacity. She reported that another normed test administered to R[...] revealed
that he had an average to high intellect. He had managed to expand his
vocabulary. She identified deficits of an executive nature which would explain
the fluctuations in R[...]’s academic performance and behavioural difficulties.
[44] The Educational Psychologist predicted that R[...] would not progress
past grade 10 and that the accident had a negative impact on R[...]’s earning
capacity. In her report emanating from her third assessment , dated 6 August
2024, the Occupational Therapist found that R[...] did not require occupational
therapy. He has intact non-verbal practical abilities, but in the absence of further
training, R[...] is likely to remain an unskilled assistant to a tradesman with poor
prospects of promotion.
[45] There were two Industrial Psychology reports. The Court was not warned
about a report from Ms Auret -Besselaar, dated 12 May 2016. Auret-Besselaar
predicted that R[...] would have completed matric in the uninjured state. She
sketched a career path that progressed to a terminal level at the median and
upper semi-skilled level of R99 500 per annum . Her injured career progression
was limited to sympathetic employment at R 2600 to R3000 per month. The
Plaintiffs relied upon a second Industrial Psychology report of Bernard Swart.
Swart also sketched an uninjured career progression premised upon R[...]
attaining his matric. He terminates R[...]’s employment at the midpoint between
the median and upper quartile earnings in the non -corporate sector. He suggests
earnings of R142 000 per annum or R11 833.33 per month by the age of 40.
R[...] would have then enjoyed annual salary increases linked to inflation . For
the injured state, Swart was of the view that R[...] would be confined to
sheltered employment without any gainful income. The Actuarial calculations
of the Auret -Besselaar and Swart career projections differ materially , with the
loss of earnings under the Swart projections materially higher by about
R1million than the Auret-Besselaar projections.
[46] Plaintiff now claims R4 013 661, comprising R1 500 000 for general
damages, R 2 013 661 for loss of future earnings, and R500 000 for medical
expenses.
EVALUATION
[47] The Plaintiffs modelled their claim seeking restitution on Myhill.11 Both
Myhill and this case involve minors whose claims were settled on their behalf
by adults. In Myhill, the mother accepted a settlement on behalf of her injured
children.12 In this case, the mother , through an attorney, accepted a settlement
for the Second Plaintiff , who was sixteen mont hs old when the accident
occurred and five years and seven months old when the settlement occurred.
Courts treat minors as a protected class. 13 In both cases, restitutio in integrum
was sought. In this case, the summons commencing the restitution action was
served five years after the settlement, which is considerably shorter than the ten
years it took in Myhill. In the case of minors, restitution remains available even
many years later. Delay does not bar restitutio n where minors are c oncerned,
but prescription relating to their attainment of majority may. Any settlement
concluded on their behalf is subject to strict scrutiny and can be rescinded if
prejudicial. The Plaintiffs need to show that any prejudice to the minor
occasioned by t he settlement is serious or substantial and was inimical
(unfavourable or adverse) from its inception .14 There are, however, key
differences between this case and Myhill.
[48] In both cases, the Defendant sought to impose an apportionment of 30%
attributable to the mother’s alleged negligence and did so in Myhill. In this case,
the Plaintiff’s attorney resisted the apportionment , and the Defendant
acquiesced in the final offer of settlement. A debtor liable to a minor, when sued
11 Road Accident Fund v Myhill NO 2013 (5) SA 399 (SCA) (‘[Myhill’)
12 Id at para 9
13 Id at para 12
14 Id at paras 24-29
by the child’s custodian parent , may not set off any amount that the custodian
parent may owe it against its liability to the child.15
[49] Both cases involve possible long-term neurological consequences. In
Myhill, the Defendant ignored the risk of post-traumatic epilepsy.16 In this case,
the Second Plaintiff developed seizure-like episodes shortly after the accident.
The S upreme Court of Appeal emphasised that ignoring future medical risks ,
especially neurological ones, renders a settlement substantially prejudicial .17 In
this case, the Defendant ’s final offer was informed by three medicolegal
experts, including a Neurosurgeon. The Neurosurgeon linked the Second
Plaintiff’s post-traumatic epilepsy positively to the accident, regardless of the
history of febrile seizures or whether it may have occurred in a susceptible brain
or not. Pre-existing vulnerability does not absolve the Defendant of paying
damages as the thin skull rule (talem qualem or egg-skull rule) is a principle in
the law of delict stating that a wrongdoer must take their victim as they find
them.18 The history of headaches, which has persisted, was relayed to the
Neurosurgeon. The Claims Handler testified that she had regard to all three
medico-legal reports and identified the epileptic attacks and the permanent
facial scarring as compensable sequelae of the head injury. In addition to
increasing the offer on general damages, the Defendant provided an undertaking
to cover the costs of future anticonvulsant and other treatment for sequ elae
arising from the accident. The First Plaintiff accepted the undertaking.
[50] The Second Plaintiff’s testimony describe d emotional distress, current
psychosocial difficulties , forgetfulness, job instability, hypertension, family
conflict, financial stress, occasional suicidal ideation, headaches, past teasing at
15 Id at para 28
16 Id at para 18
17 Id at paras 18-21
15 Id at para 28
16 Id at para 18
17 Id at paras 18-21
18 Wilson v Burt (Pty) Ltd 1963 (2) SA 508 (D) at 516, Gibson v Berkowitz and Another 1996(4) SA 1029
at 1049F- 1050D, Clinton Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal
1996 (2) SA 37 (W) at 65H-66F
school, early school failure, seizures that resolved, and environmental
instability. None of this, apart from the headaches and the seizures , was known
in 2008 and more importantly none of the other difficulties was reasonably
foreseeable in 2008 based on the neurosurgeon’s evidence . The testimony
cannot retroactively create foreseeability or prejudice for purposes of restitution.
They cannot retroactively render the settlement prejudicial , as l ater‑emerging
difficulties cannot be used to show that the original settlement was
unreasonable.
[51] Both cases involve settlements that are arguably too low for the injuries
sustained. In Myhill, the settlements were trivial , namely R4900 and R5600. In
this case, the settlement was R80 000, which may still be low given that the
Second Plaintiff sustained a permanent facial scar extending from the left eye to
the right ear and suffered post -traumatic epileptic seizures. Quantum is not
assessed in isolation. The question is whether the settlement materially
undercompensated the minor given the injuries and risks . The Plaintiffs sought
to underscore the settlement of general damages by referring to awards of
general damages in recent cases. 19 The Plaintiffs suggested that an award of
R1 500 000 should have been made under this head of damages. Myhill
cautioned against this approach. It acknowledged substantial increases in
awards for general damages have occurred, but stated that it is necessary to
consider w hat would have been reasonable then and not now. 20 The trend
towards increased awards for general damages was affirmed in Marunga.21
Myhill also cautioned that a Court should take into account factors known at the
time the claim was settled.22
19 Braun NO (obo Tiripano v PRASA 2025 QOD (9) A4-1 (WC), Mv RAF 2023 QOD (8) B4-76 (NC),
Cawood NO v RAF 2023 QOD (8) A4-195 (GHCP), BV v RAF 2021 QOD (8) A4-5 (FS), Nawe v RAF
2021 QOD (8) A4-46 (GHCP), Maribeng v RAF 2021 QOD (8) A4-39 (GHCP)
20 Myhill at para 19
2021 QOD (8) A4-46 (GHCP), Maribeng v RAF 2021 QOD (8) A4-39 (GHCP)
20 Myhill at para 19
21 Road Accident Fund v Marunga 2003(5) SA 164 (SCA), see De Jongh v Du Pisani, [2004] 2 All SA
565 SCA which warned against undue reliance on more recent higher awards.
22 Myhill at para 13
[52] The usual practice adopted by practitioners in motivating a n appropriate
award for general damages is to consider comparable cases in readily accessible
reference sources like Robert Koch’s Qu antum of Damages and SAFL II. To
establish what would have been comparable and reasonable in 2008,
practitioners would have to look at the corresponding quantum yearbook or
2008 and pre-2008 awards in SAFLII. An award made for general damages in
another case is comparable if the nature of the injuries and their sequelae
correspond to the case being considered. The facts known to the Plaintiffs, their
attorney, and the Defendant in 2008 were that the Second Plaintiff, according to
the RAF1 medical form, suffered a minor head injury . The Neurosurgeon did
not classify the head injury any further except to say that the accident
contributed to the Second Plaintiff’s development of epilepsy . The Second
Plaintiff was shocked, but not unconscious , after the accident . The skull X-ray
and subsequent CT Scan of the head and brain were normal. He did not show
the classic symptoms or signs of a brain injury, like vomiting or peripheral
neurological deficits. He did complain of headaches, which were probably post-
traumatic. The Second Plaintiff s uffered a significant scar to his forehead. The
Court directed the parties to provide additional submissions on comparable
awards for general damages that would have been reasonable in 2008.
[53] The Plaintiffs relied upon Nombhadi Princess Mbola (‘Mbola’), an
unreported case of the Eastern Cape High Court, Grahamstown , which was
cited in Makapula v RAF 2010 QOD 6 B4 -48 (ECM). The award made in
Makapula, as adjusted to 2008 terms, was R268 537 and R300 000 in Mbola. In
both cases , extensive neurocognitive deficits and behavioural problems were
documented. The credible evidence presented to the Defendant by Enslin
Meyer on behalf of the Second Plaintiff in this case was that no
neuropsychological sequelae were anticipated.
[54] The Plaintiffs su bmitted three further cases for comparison. The facts in
Torres v RAF, QOD 6 A4 -1 (GHCJ) , are distinguishable as they involve an
older person with a severe diffuse brain injury. Similarly, Sterris v RAF , 2009
QOD 6 B4 -26 (WCHC) is also distinguishable as it involved an older person
with a myriad of severe orthopaedic injuries in addition to his brain injury. The
fourth case forwarded by the Plaintiffs, Combrinck v RAF, 2001 QOD 5 B4 -81
(W), is also distinguishable as it involved severe head and brain injuries
comprising a skull fracture with significant contusions of the frontal lobes of the
brain and bleeding into the cerebellum, the latter requiring a surgical
decompression procedure. The awards made, as adjusted to their 2008 value, in
Torres were R669 124, Sterris R233 378, and Combrink R272 550.
[55] The Defendant relied upon two cases. The injuries sustained by the minor
in Duncan and Duncan NO v Commercial Union Assurance Co Ltd 1974 (2B2)
QOD 443 (W) are closely comparable to those suffered by the Second Plaintiff.
In Duncan, the minor suffered lacerations to his head and post-traumatic
epilepsy. The 2008 equivalent of the amount awarded would be R53 640. In
Maja v SA Eagle Insurance Company Limited 1987 (4B2) QOD 1 (W) , the
minor also suffered comparable injuries to those of the Second Plaintiff, i.e., a
head injury with post -traumatic epilepsy. The monetary award of R 6 000 in
1987 equates to a 2008 value of R33 540. However, these cases are too old and
represent an era when awards for general damages were conspicuously
conservative. The Court nevertheless appreciates the effort the parties expended
in sourcing and presenting these submissions.
[56] In accordance with t he approach in Myhill, the settlement must be
evaluated against the medical evidence and quantum norms reasonably
available in 2008. The Plaintiffs’ comparable cases involved significant
neurocognitive and behavioural sequelae and are not analogous to the present
matter. The Defendant’s cases, though older, are materially comparable and,
when adjusted to 2008 values, yield awards between R3 4 000 and R5 5 000.
Having regard to the neurosurgeon’s prognosis, the absence of acute
neurological signs, the minor’s functioning for many years, and the nature of the
injury, a reasonable 2008 range for general damages would have been between
R50 000 and R 100 000. The settlement of R80 000 falls squarely within that
range and cannot be said to bear no realistic relations hip to the damages
reasonably claimable at the time. The negotiation history between the First
Plaintiff’s attorney spanned the amounts of R100 000, R14 000, R20 000,
R150 000, R90 000 and was finally settled at R80 000. The final settlement
reflects ordinary compromise dynamics and does not render the final figure
unreasonable.
[57] Awards for general damages fall within the broad discretion of the court,
exercised to achieve fai r compensation in the circumstances of each case.
Comparable cases serve as guides rather than binding precedents, and a range of
reasonable awards may exist for the same injury. Even if a court might have
awarded a somewhat different amount, the compromis e cannot be said to bear
no realistic relationship to the damages reasonably claimable at the time . The
Plaintiffs have therefore not established that the compromise was substantially
prejudicial when concluded
[58] The Plaintiff s argue that the attorney and the Defendant should have
foreseen a claim for loss of earning capacity in 200 8, and that their failure to do
so constitutes substantial prejudice. This argument cannot succeed. The test is
not whether such a claim is viable to day, but whether it was reasonably
foreseeable in 2009. The contemporaneous evidence did not support such
foreseeability. The Neurosurgeon did not anticipate cognitive or
neuropsychological deficits. The minor’s early development was normal. There
were no behavioural or educational red flags at the time. The seizures were
expected to resolve and did. The Defendant was entitled to rely on the
Neurosurgeon’s opinion. It was not required to obtain additional experts on its
own initiative or to delay settlement indefinitely “just in case” further deficits
might emerge. The Neurosurgeon’s opinion accorded with the clinical notes
relating to the acci dent and its aftermath. The Defendant relied on the
medicolegal reports provided by the First Plaintiff’s attorney , responded
promptly to the claim and did not delay in acquiring reports of their own . 23 The
Plaintiffs' reliance on present ‑day expert repor ts to establish past foreseeability
is legally impermissible. These reports cannot retroactively impose obligations
on the Defendant or the attorney that did not exist at the time. There was no
basis in 2008 to foresee a loss of earnings claim.
[59] The Plaintiff’s new battery of expert medicolegal reports, namely that of
a Neu rologist, Neuropsychologist, Speech Therapist, Occupational Therapist,
Educational Psychologist, I ndustrial Psychologists, and Actuaries , are all
post‑facto reconstructions. They cannot be used to re‑value the claim as if it
were 2026, impose present‑day knowledge on 2008 decision ‑makers, or create
prejudice by hindsight . They are only relevant insofar as they illuminate what
should reasonably have been foreseen in 2008.
[60] The Minor’s Actual Life Course undercuts the “florid neuropsychological
fallout” Narrative. The Second Plaintiff has a girlfriend and a child. He
functions socially and occupationally. His ongoing headaches have two other
credible causes, namely migraine and hypertension. This real ‑world functioning
is inconsistent with severe neuropsychological impairment, catastrophic
cognitive fallout, or the kind of deficits that would justify a multi ‑million‑rand
claim. The real issue in this case is whether the settlement was so objectively
claim. The real issue in this case is whether the settlement was so objectively
23 Modise obo Minor v Road Accident Fund 2020 (1) SA 221 (GP) at para 4.11
inadequate, given the expert evidence available in 2008, that it was substantially
prejudicial to the minor’s interests? Is this a case of hindsight rather than
demonstrable prejudice?
[61] The Plaintiffs' reliance on Myhill is misplaced on the facts. There are
material differences in key aspects between this case and Myhill. The
determinative question of whether the compromise concluded in 200 8, on the
evidence reasonably available at the time, was substantially prejudicial to the
minor’s interests to justify the exceptional remedy of restitutio in integrum has
to be answered in the negative. On the totality of the evidence, the Plaintiff s
have not established that the compromise was substantially prejudicial when
concluded. Restitutio in integrum is therefore not warranted.
COSTS
[62] The Plaintiffs sought their costs on a party and party scale with Counsel’s
fees on the C scale, if they prevailed . The Defendant was ambivalent about the
costs if it were to succeed . Defendant’s Counsel suggested that Defendant
would not seek costs against the Plaintiff if the Defendant pre vailed. Counsel
later suggested that the costs should follow the outcome. The Court, acting upon
the generous cue from Defendant’s Counsel, concludes that each party should
pay their own costs.
ORDER
In the premises, the order that follows:
1. The Defendant’s special plea that the Plaintiffs' claims against it were finalised
and settled is upheld.
2. The Plaintiffs' claim for restitutio in integrum is dismissed.
3. Each party shall pay their own costs.
_________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e-mail on 13 April 2026
Applicant’s Counsel: M A Crowe SC
Instructed by: Jonathan Cohen & Associates
Respondent’s Counsel: LX Dzai
Instructed by: State Attorney