IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 14175/13
REPORTABLE
In the matter between:
VANESSA VAN NEE FIRST PLAINTIFF
ROGEN VAN NEE SECOND PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: BHOOPCHAND AJ
Heard: 22 May 2026
Delivered: 25 May 2026
Summary: Leave to appeal the Court ’s finding against granting restitutio in
integrum on a compromise agreement of settlement for damages suffered by the
Second Plaintiff who was a minor when he was involved in an accident.
Plaintiffs’ grounds of appeal and arguments misconstrue the ratio in Road
Accident Fund v Myhill NO 2013 (5) SA 399 (SCA) . The errors and
misdirection alleged by the Plaintiffs are unsustainable, and they have not
demonstrated that another Court will come to a different finding, or reasonable
prospects of success on appeal or a compelling reason to grant leave to appeal.
Application dismissed with costs.
ORDER
The application for leave to appeal is dismissed with costs.
JUDGMENT
ON APPLICATION
FOR LEAVE TO APPEAL
Bhoopchand AJ:
INTRODUCTION
[1] The Plaintiffs apply for leave to appeal against the whole of the judgment
delivered on 1 3 April 2026, in which their claim for restitutio in integrum was
dismissed. The application advances nine grounds of appeal. The Respondent
opposes the application. The Court shall deal with each ground of appeal in
turn.
GROUND 1: ALLEGED FAILURE TO APPLY THE EQUITABLE
PRINCIPLE UNDERLYING RESTITUTIO.
[2] The Plaintiffs contend that the Court erred in finding that the compromise
concluded in 2008 was not substantially prejudicial to the minor, and it erred
further in fail ing to give proper effect to the equitable nature of restitutio in
integrum for minors.
[3] This ground cannot be sustained. The Court applied the correct test, as
articulated in Road Accident Fund v Myhill NO 2013 (5) SA 399 (SCA)
(‘Myhill’): whether the compromise was substantially prejudicial on the facts
and medical evidence reasonably available at the time it was concluded. The
heightened protection afforded to minors was expressly recognised. Equity does
not permit a court to revisit a compromise with the benefit of hindsight or to
substitute present -day medical knowledge for what was known in 2008. The
Plaintiffs’ case relied heavily on later -emerging evidence, which serves as a
comparative reference for what was known in 2008, but cannot ground a finding
of substantial prejudice under the test articulated in Myhill.
[4] Equity did not entitle the minor to a better bargain than the one
reasonably available in 2008. The Plaintiffs failed to meet the factual threshold
for substantial prejudice. The complaint amounts to a disagreement with the
Court’s factual findings, which were based on the evidence and consistent with
the principles in Myhill. The Road Accident Fund (‘RAF’) was entitled to rely
on the hospital admission notes after the accident, the information provided by
the doctor who completed the RAF1 medical form, the hospital notes
documenting the development of epilepsy and the Neurosurgeon’s report
discounting neuropsychological and neurocognitive sequelae. Counsel were
forewarned that the facts in this case were distinguishable from Myhill in
material respects.
[5] The settlement amount fell within the compromise dynamics and a
reasonable settlement range. The Second Plaintiff’s later difficulties were
neither predictable nor foreseeable in 2008. No error or misdirection is shown.
There is no reasonable prospect that another court would find that the
compromise was substantially prejudicial on the information available in 2008.
Leave to appeal on this ground is therefore refused.
GROUNDS 2 AND 3: EX POST FACTO EXPERT EVIDENCE AND
ALLEGED UNDER COMPENSATION.
[6] The Plaintiffs argue that the Court erred in treating their new suite of
medico-legal reports as ex post facto reconstructions and in failing to find that
the compromise materially undercompensated the minor. Plaintiff’s Counsel
forcefully argued that the Court “swept aside” the Plaintiffs’ new expert
evidence. This is incorrect.
[7] The judgment expressly recognised that such evidence is admissible, but
only insofar as it illuminates what was reasonably foreseeable in 2008. This is
precisely the approach mandated in Myhill, which prohibits the use of
later-emerging expert opinions to create risks that were not apparent at the time
of settlement. The contemporaneous medical evidence , including the
Neurosurgeon’s express view that no neuropsychological fallout was expected ,
did not raise any real possibility of cognitive sequelae. The later expert reports
cannot retroactively create such a possibility.
[8] The Plaintiffs relied upon a part of paragraph 36 of the judgment when
they alleged that t he defendant’s Claims Handler had accepted that the offer
made by the defendant did not include damages for the aforesaid significant
neuropsychological behavioural sequelae of the brain injury. They omitted
further parts of paragraph 36 of the judgment . The C laims Handler stated in
evidence that the offer did not include damages for significant
neuropsychological fallout as the Defendant did not have any expert report that
dealt with these aspects. She agreed that if she had access to reports that stated
what the recent reports stated, she would have included it in the offer.
[9] The florid physical damage sustained by the two children in the Myhill
case e.g., the one who suffered an occipital impact with parietal lobe infarcts,
made post traumatic epilepsy eminently predictable in that case. Dr Parker’s
opinion in this case amounted to the following: i n the absence of skull fractures
and organic (physical) brain damage, functional anomalies (neuropsychological
and neurocognitive sequelae) are less predictable. The hospital records in Myhill
already contained evidence of epilepsy. The later Neuropsychologist, Ms A dan
explained that evidence. There was no reference to neurocognitive or
neuropsychological sequelae that the later experts in this case had to explain.
There was certainly no ‘real possibility' of neuropsychological or
neurocognitive sequelae ever documented up to the settlement of this claim in
2008.
[10] The Plaintiffs allege that because the child was apprehensive, the
examination conducted by Dr Parker was unreliable. Dr Parker did not say in
his report that the examination was unreliable or that he could not assess
neurological function.
[11] These grounds mischaracterise both the evidence and the judgment. The
Court did not exclude the new expert evidence; it held, correctly, that such
evidence may only illuminate what was known in 2008 and may not create new
risks or impose hindsight on past decision-makers. This is precisely what Myhill
requires.
[12] This is not a case that is inimical from its inception as the Plaintiff’s
argue. The rhetoric is forceful, but the facts legally weak on the test to be
correctly applied, the actual evidence, and the limits of hindsight. The RAF’s
omission to compensate for unforeseeable sequelae is not evidence of prejudice.
It is evidence of compliance with the medical evidence available at the time.
There was no factual or medical basis upon which the RAF could have
compensated for neuropsychological deficits or loss of earnings.
[13] In 2008, the Neurosurgeon did not anticipate neuropsychological fallout,
found no focal neurological signs, and expressly stated that no
neuropsychological assessment was indicated. The Neurosurgeon did not
foresee cognitive sequelae at that stage. There were no contemporaneous red
flags suggesting a real possibility of later neuropsychological impairment. The
settlement amount of R80 000 fell within a reasonable 2008 range for the
injuries then known. These grounds disclose no error or misdirection and no
reasonable prospect that another court would find that the compromise
materially undercompensated the minor on the information available in 2008.
Leave to appeal on these grounds is refused.
GROUNDS 4 AND 5: INTERPRETATION OF MYHILL AND
FORESEEABILITY
[14] The Plaintiffs contend that the Court misapplied Myhill by failing to find
that the facts known in 2008 gave rise to a real possibility of further
neurological or neuropsychological sequelae. Plaintiff’s Counsel argued that the
Court applied the incorrect test of ‘reasonable foreseeability’ at the time of the
compromise as Myhill prescribed a ‘real possibility’ test.1
[15] The submission advanced by Plaintiffs’ Counsel regarding paragraph 18
of Myhill is misplaced. The “real possibility” referred to in Myhill arose from
contemporaneous evidence already pointing to possible epilepsy. The
submission that Myhill would be meaningless if it set the test at reasonable
foreseeability is misconceived. The “real possibility” referred to in paragraphs
18 to 21 of Myhill arose from contemporaneous evidence already pointing to
possible epilepsy. Plaintiffs’ Counsel’s argument proceeded along the lines that
because the subsequent experts the Plaintiffs appointed between 2014 and 2026
found neuropsychological deficits , they must have therefore been a ‘real
possibility’ in 2008 when the present matter was settled. The Court should have
therefore applied paragraph 18 of Myhill. This is impermissible as it constitutes
a misreading of Myhill by Counsel. The contemporaneous medical evidence did
not indicate any real possibility of neuropsychological sequelae . The Plaintiffs’
reliance on later expert evidence to retroactively create such a possibility is
precisely what Myhill prohibits. In Myhill, the ‘real possibility’ of the children
developing epilepsy was the lower threshold of reasonable foreseeability. It was
not a separate test.
[16] It bears repetition that i n Myhill, the two children suffered ‘serious’ head
injuries. One child was hospitalised for 10 days and the other for 6 days. After
they had been released from hospital, the Plaintiff in Myhill alleged that both
had suffered seizures on various occasions. One of the two children had an
impact in the occipital area and suffered an infarct, i.e. the death of tissue, in the
parietal area of the brain. Th e SCA stated that th is type of focal injury would
predispose a child to a higher risk of developing post traumatic epilepsy. Both
1 Myhill at paragraph 18
had electroencephalograms (electric readings of the currents in the brain similar
to an electrocardiogram of the heart) but the results thereof were not available.
The possibility of epilepsy was not taken into account by the Road Accident
Fund (RAF) in the assessment of the childrens ’ general damages although these
facts were known when the compromise occurred.
[17] In this matter, the facts known to the First Plaintiff, 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 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. The Second
Plaintiff did not show the classic symptoms or signs of a brain inju ry, like
vomiting or peripheral neurological deficits. He did complain of headaches,
which were regarded as being probably post -traumatic. He did suffer a
significant scar to his forehead.
[18] Hence, in this matter, the contemporaneous medical evidence did not
indicate any real possibility of neuropsychological sequelae; on the contrary, the
Neurosurgeon expressly ruled it out . The Plaintiffs’ reliance on later expert
evidence to retroactively create such a possibility is precisely what Myhill
prohibits. The Court took note of Dr Tucker’s opinion on why the assessment of
the severity of the Second Plaintiff’s head injury after the accident was difficult.
This opinion did not state that the initial assessment was therefore incorrect.
[19] The Court’s application of reasonable foreseeability was correct and
consistent with binding authority. The Court applied Myhill faithfully. The
seizures were attributed to a vulnerable brain with pre -existing febrile seizures
and were expected to resolve. The Neurosurgeon expressly ruled out cognitive
fallout. There was no factual or medical basis in 2008 to foresee the sequelae
later alleged.
[20] The argument that the RAF ought to have assumed that even a minor
head injury could lead to severe neuropsychological sequelae is inconsistent
with Myhill. The RAF is required to consider risks raised by the
contemporaneous evidence, not to assume the worst in the absence of such
evidence.
[21] The RAF was entitled to finalise the claim on the evidence then available.
No error or misdirection is shown. There is no reasonable prospect that another
court would find otherwise, and these grounds of appeal are without merit.
GROUNDS 6 AND 7: COMPARABLE CASES AND QUANTUM
[22] The Plaintiffs argue that the Court erred in rejecting their comparable
cases and in relying on the Defendant’s older cases when assessing the
reasonableness of the 2008 settlement.
[23] The Plaintiffs’ authorities involved moderate to severe brain injuries with
significant neurocognitive and behavioural sequelae and multiple injuries. They
were not analogous to the injuries known in 2008 and could not properly inform
the assessment of a reasonable award.
[24] The Defendant’s cases, although older and reflecting a conservative era,
were materially comparable in terms of injury profile , namely a long facial
laceration and a mild head injury without anticipated cognitive sequelae. They
were used not as binding precedents but as guides to the relative scale of awards
for similar injuries in 2008. The Court’s conclusion that a reasonable 2008
range lay between R50 000 and R 100 000 was based on the totality of the
evidence and the discretionary nature of general damages. It took cognisance of
the significant facial scarring and the contemporaneous opinions of the Plastic
Surgeon. Incorporated.2 An award which was more than the highest award in
Defendants cited cases by about R26 000 was considered to be appropriate in a
compromise. No misdirection is shown. These grounds disclose no reasonable
prospect that another court would reach a different conclusion. Leave to appeal
on them is refused.
GROUND 8: LOSS OF EARNINGS / EARNING CAPACITY
[25] The Plaintiffs contend that the Court erred in dismissing the claim for loss
of earnings or earning capacity and in referring to the Auret-Besselaar report.
[26] At the expense of repetition, t he correct test is whether the compromise
was substantially prejudicial on the facts and medical evidence reasonably
available at the time it was concluded . It was not. There were no
contemporaneous indicators of future occupational dysfunction.
[27] The reference to the Auret -Besselaar report was contextual and
non-determinative. The report was commissioned, served, and filed by the
Plaintiffs and used by their own actuary. It was mentioned to illustrate the
inherent variability of medico -legal projections, particularly where two experts
instructed by the same party produced actuarial losses differing by
approximately R1 million. Furthermore, i n circumstances where the Plaintiffs
were critical of the Defendant for allegedly failing to act justly in 2008, it would
have been preferable for the Court to have been expressly alerted to the
existence of both reports, particularly given the substantial discrepancy between
them. The Court had no duty, as the Plaintiff’s suggest, to alert them to a
document they themselves placed in the court file or to give them an
2 E.g., paragraphs 15 and 52 of the judgment
opportunity to deal with it . A Court is entitled to refer to documents in the file
for contextual, conduct, or illustrative purposes. These observations do not
affect the outcome but underscores the need for full and balanced disclosure of
expert material in complex damages litigation . The Plaintiffs suffered no
prejudice, and the report played no role in the Court’s findings on foreseeability
or liability. It is inconceivable, as Plaintiff’s Counsel seemed to suggest, that the
reference to this report would have impacted on the Court’s eventual findings.
[28] The Plaintiffs’ Counsel’s criticism of the Court’s reference to the Second
Plaintiff’s actual life course, as an ‘unnecessary finding’ is misplaced. It was
neither unnecessary nor determinative of foreseeability. It was relevant to
assessing the reliability of the Plaintiffs’ retrospective expert reconstructions
and the contention that the Second Plaintiff suffered catastrophic
neuropsychological fallout. Courts routinely consider real -world functioning
when evaluating expert evidence.
[29] This ground discloses no misdirection and no reasonable prospect that
another court would reach a different conclusion. Leave to appeal on this
ground is refused.
GROUND 9: ALLEGED COMPELLING REASON TO DEVELOP THE
COMMON LAW
[30] The Plaintiffs contend that, if the Court correctly applied Myhill, the
matter should nevertheless be referred to the Supreme Court of Appeal to
develop the common law so as to permit reliance on hindsight when assessing
prejudice in the context of a compromise concluded on behalf of a minor.
[31] This contention is untenable. Myhill is binding authority. A High Court is
not at liberty to depart from it, to create exceptions to it, or to develop the
common law in a manner inconsistent with it. The requirement that prejudice
must exist at the time of the compromise is a foundational principle of the law
of compromise, the law of contract, and the need for finality in RAF litigation.
No constitutional basis for development was identified. Moreover, even if the
law were different, the Plaintiffs’ case would fail on the facts: the
contemporaneous medical evidence did not indicate a real possibility of
neuropsychological sequelae or the potential of occupational difficulties
necessitating loss of earnings. The compromise bore a reasonable relationship to
the damages then claimable. This ground of appeal is without merit. It discloses
no compelling reason for an appeal as contemplated in section 17(1)(a)(ii) of the
Superior Courts Act. Leave to appeal on this ground is refused.
CONCLUSION
[32] Section 17(1) of the Superior Courts Act requires the Court to grant leave
to appeal only where there is a reasonable prospect that another court would
come to a different conclusion, or where there is some other compelling reason
for the appeal to be heard.
[33] Having considered all nine grounds, the Court is satisfied that the
judgment contains no error or misdirection. The Court’s factual findings are
supported by the record, the application of Myhill is correct and unavoidable ,
The Plaintiffs arguments rely on hindsight, which the SCA expressly prohibits,
the quantum assessment falls within the Court’s discretion, the causation and
foreseeability findings are unassailable, and no novel legal issue or
constitutional matter arises or forms a compelling reason to grant leave to
appeal.
[34] There is accordingly no reasonable prospect of success and no compelling
reason for the appeal to be heard. The Defendant sought its costs if it prevailed
in its opposition to the application for leave to appeal. There is no reason why
the Court’s order should reflect otherwise.
ORDER
In the premises, the order follows:
The application for leave to appeal is dismissed with costs.
_________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e-mail on Monday 25 May
2026
Applicant’s Counsel: M A Crowe SC
Instructed by: Jonathan Cohen & Associates
Respondent’s Counsel: LX Dzai
Instructed by: State Attorney