SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
28 April 2026 _____________________
DATE SIGNATURE
CASE NO.: A140/2025
COURT A QUO CASE NO.: 32952/2018
In the matter between:-
ADV YVETTE ISAACS obo N[...] E[...] Appellant
v
ROAD ACCIDENT FUND Respondent
Heard on: 28 January 2026
Delivered: 28 April 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 28 April 2026.
Summary:
1. An appeal court would only interfere if there is a misdirection in law o r
on the facts on the part of the court a quo. If a trial court's assumption
is within a reasonable range a court on appeal will not interfere (Bee v
Road Accident Fund 2018(4) SA 368).
2. A court is not bound to the opinion of an expert. An expert’s reasoning
must be underpinned by proper reasoning in order for a court to assess
the cogency of the opinion. For an opinion to be underpinned by proper
reasoning, it must be based on correct facts.
ORDER
______________________________________________________________________
It is ordered:-
1. The appeal pertaining to the refusal by the court a quo , for loss of earning
capacity and future loss of income, is dismissed.
2. The issue of general damages is postponed sine dies.
3. The appellant is liable for the costs of this appeal.
JUDGMENT
______________________________________________________________________
KOOVERJIE J ( Mngqibisa-Thusi J and Bam J concurring)
THE APPEAL
[1] This appeal lies against certain portions on the court a quo’s judgment delivered
on 25 February 2025, in particular, the court’s refusal of the appellant’s claim for
future loss of earning capacity and future loss of income on behalf of the minor
child, N[...] E[...]. Although the respondent conceded 100% on the merits, it has
not participated in any court proceedings. The court a quo in its judgment
referred to N[...] as Mr E[...].
BACKGROUND
[2] Adv Yvette Isaacs represented the minor in her capacity as curator ad litem. He
was born on 29 April 2008 and when the accident occurred, he was 7 ½ years
old. It was relayed that whilst riding his bicycle on the road he was struck by the
insured driver. The details of the insured driver are unknown. At the time of the
accident N[...] was in Grade 1 at the Strand Moslem Primary School.
[3] Of significance is the recordal of the injuries sustained by N[...] as per the hospital
records of the Helderberg Hospital, namely that N[...] suffered: 2cm laceration on
the chin and multiple abrasions on his forehead, hands, and right knee. His
Glasgow Coma Scale (GCS) was recorded as 15/15. He lost consciousness for
around 5 minutes and complained of a headache. He was treated with
paracetamol and ibuprofen. He was kept overnight in hospital for neurological
observation and discharged from the hospital the day after. It was however
pleaded in the particulars of claim that N[...] sustained a traumatic brain injury
resulting in neurocognitive and psychological deficits.
THE COURT A QUO’S FINDING
[4] The court a quo, in essence:
4.1 was not convinced that the accident caused the minor child’s neurological
and psychological deficits. It held the view that the non-serious injuries that
the minor sustained were incapable of attracting an earning capacity which
would have translated into loss of income. The court stated:
“This court does not profess to be an expert in the field, but it seems
illogical for a bruise or laceration on the head to have severe long-term
neuropsychological disturbances or disorders”;
4.2 pointed out that a Glasgow Coma Scale reading between 13 to 15, would
indicate that the injury was mild. In this case the reading was 15/15. The
court explained that:
“Where the GCS is 13 to 15, the injury is mild, and if it is 9 to 12, the injury
is moderate and if it is 8 and below the injury is severe.” The court was of
the view that since N[...] was unconscious for a few minutes, the injury was
mild;
4.3 was not satisfied with the experts’ reports, particularly Dr. Domingo who
opined that N[...] suffered from a traumatic brain injury whereas the
hospital records did not reflect such injury;
4.4 was of the view that “other factors” such as the effect of the gangsterism in
the school environment could have triggered his bad performance. At
paragraph 27 the court expressed:
“Observedly, intensity of curriculum requirements, increased disparity
between the abilities and academic expectations, socio-economic factors;
as well as social pressures, and safety concerns all contributed to
premature exiting his education….”;
4.5 further criticized the inaccurate information relayed to the experts by Mr.
E[...] (father of N[...]) who mainly consulted with the experts. For instance,
he informed Ms. Bekker that N[...] lost consciousness and was in the ICU
unit for a period of one week whereas the hospital records noted an
overnight stay for observation, and further that N[...] was standing on the
sidewalk when he was hit by the car. This caused the court a quo to
further question the veracity of the information presented to the experts,
particularly in respect of the minor’s neurocognitive and
neuropsychological shortcomings.
THE GROUNDS OF APPEAL
[5] In the grounds of appeal it was contended that the court a quo had misdirected
itself on the facts and in law in that:
5.1 It erroneously applied the test for general damages to the claim for loss of
earnings when the court held inter alia the view that “non-serious injuries
are incapable of effecting an incapacity which will translate in a loss of
income…”. The appellant pointed out that the court disregarded the fact
that a claim for loss of earning capacity can exist even when injuries are
not severe or serious.
5.2 It was pointed out that since the court was dissatisfied with the findings
and conclusions of the experts, particularly, the neurosurgeon, Dr.
Domingo, the appellant should have been afforded an opportunity to
address the concerns of the court and not merely dismiss the expert’s
version.
5.3 The court relied on articles outlined by authors, in this case Steinman and
Fleming, without confirming if they were authoritative texts relied upon by
the medical profession. Furthermore, these texts were not placed before
the court nor addressed in evidence.
5.4 The court could not have relied on Dr. Reid's opinion when such report
was not advanced to the court.
5.5 It failed to consider N[...]’s declining academic performance in context, in
particular with regard to his school results up to Grade 7, as analyzed by
Ms. Clerk, the educational psychologist.
5.6 It erred in concluding that Ms. Clerk failed to postulate what the academic
achievements of N[...] would have been if the accident did not occur. To
the contrary, Ms. Clerk had sketched this scenario in her report.
5.7 It erred in concluding that N[...] left school in Grade 8 due to the
gangsterism issue at school;
5.8 It further erred in finding the HPCSA’s response that the injuries were not
serious were not challenged. It was pointed out that reasons were
requested from the HPCSA and the appellant intends to challenge such
decision.
5.9 It erred in not holistically considering the reports of the experts;
5.10 It erred in concluding that the appellant had no claim for general damages.
The general damages issue constitutes a separate head of damages and
accordingly should have been postponed.
5.11 The wording for the undertaking pertaining to the future medical expenses
was not in accordance with the prescripts Section 17(4)(a) of the Road
Accident Fund Act 56 of 1996 (the Act).
ANALYSIS
[6] The salient principle enunciated by our authorities is that an appeal court may
only interfere if there was a misdirection on the part of the trial court in arriving at
the assumption or if such assumption was substantially different from the outcome
of the appeal court would arrive at. Simply put. in the absence of misdirection if
the trial court’s assumption are within a reasonable range, the appellate court
should not interfere just because it would have adopted other reasonable
assumptions. In Bee1 the Supreme Court of Appeal cogently set out the
principles to be observed by an appeal court. It expressed:
“… the trial court’s factual findings are presumed to be correct in the absence of
demonstrable error. To overcome the presumption an appellant must convince
1 Bee v Road Accident Fund 2018 (4) SA 368 SCA at paragraphs 46-48 (“Bee”)
the appellate court on adequate grounds that the trial court’s factual finding were
plainly wrong.”
[7] The appellant is therefore required to convince this court that the trial court’s
factual findings were plainly wrong, bearing in mind the advantages enjoyed by
the trial court of seeing, hearing and appraising the witnesses. Therefore, it is only
in exceptional cases that an appeal court would interfere with the trial court's
evaluation.2
[8] It is further settled law that courts are not bound by the view of an expert. An
expert is required to assist the court by laying out a factual basis for his/her
conclusions explaining his/her reasoning to the court. A court is required to
satisfy itself as to the expert’s correct reasoning. An expert’s opinion must be
underpinned by proper reasoning in order for a court to assess the cogency
thereof. Absent any reasoning the opinion becomes inadmissible.3
[9] In order to determine if the court a quo’s misdirected itself, this appeal court would
have to consider the evidence of the experts against the backdrop of the injuries
sustained by N[...].4 On my perusal of the experts reports, I have noted that the
father, Mr. E[...], was present at all of the consultations and had in the main
relayed N[...]’s condition with the experts. The experts commenced their
2 Roux v Hattingh 2012 (6) SA (4) 28 SCA [2012] ZASCA 132 at paragraph 12
3 In Bee at paragraphs 22 to 23, the court cited various authorities with approval which illustrated how expert
evidence should be dealt with
4 N C obo N Z v Road Accident Fund (26302/15) [2018] ZAGPJHC 63
assessment from 2018 (three years after the accident) until 2025. Certain of the
experts later filed their respective addendums.
[10] The core issue for determination, in my view, is whether the court a quo erred in
concluding that there was no causal connection between the injuries sustained in
the accident and his future loss of earning capacity.
[11] At this juncture, I have noted that the court a quo had in fact accepted that in
certain instances the non-serious injuries may affect the earning ability of a
claimant. This is aligned to our authorities where a claim for loss of earnings may
arise in cases of non-serious injuries.5 Consequently the ground of appeal raised
on this aspect has no merit.
[12] In this instance, the court was not convinced that there was a causal link between
the injuries sustained in the motor vehicle accident and N[...]’s academic
performance. N[...] apparently left school in 2022 in Grade 8 when a group of
gangsters attacked a child on school grounds.
N[...]’s injuries
[13] The court was not persuaded by Dr. Domingo's findings that N[...] suffered from a
traumatic brain injury which left him with cognitive and behavioural sequelae that
are permanent. Dr. Domingo was criticized for exaggerating N[...]’s condition by
stating that at the time of discharge “he experienced headaches, photophobia,
was intermittently confused, and had difficulties in sleeping”. This was clearly not
5 Botha v Road Accident Fund 2015 (2) SA 108 GP at paragraph 40
in accordance with the hospital records. The court accepted that N[...] suffered
from a mild concussive head injury.
[14] It is further noted that prior to Dr. Domingo’s assessment, N[...] was examined by
other experts. The first, being Ms. Schoeman, the neuropsychologist, who in fact
opined that N[...] suffered from a mild brain injury. Furthermore Ms. De Wit, the
neuropsychologist, Ms. Bester the occupational therapist, Ms. Kotze, the industrial
psychologist, Dr. Fevre, psychiatrist and Dr. Ogilvy all examined N[...]
independently and did so prior to N[...]’s visits to Dr. Domingo.
[15] For the sake of convenience, the experts with whom N[...] consulted are listed in
chronological date sequence namely:
15.1 Ms. Bester (occupational therapist)- on 29 April 2018;
15.2 Dr. Le Fevre (psychiatrist)- on 23 May 2018;
15.3 Ms. De Wit (clinical psychologist)- on 21 September 2018;
15.4 Ms. Schoeman (neuropsychologist)- on 21 September 2018, 27 August
2021 and 22 November 2024;
15.5 Dr. Domingo (neurosurgeon)- on 27 November 2018;
15.6 Ms. Bekker (educational psychologist)- on 22 January 2019 ;
15.7 Dr. Ogilvy (speech and language therapist)-on 10 April 2019;
15.8 Kotze Blake and Associates (industrial psychologist)- on 3 December
2019;
15.9 Dr Sutherland (psychologist)- on 6 November 2024
15.10 Ms. Clerk (educational psychologist)- on 22 January 2025
[16] Dr Domingo, the neurosurgeon, examined N[...] on 26 July 2023 and later
submitted an addendum report on 24 November 2024. His initial examination
was conducted approximately 16 years after the accident. Dr Domingo recorded
that he had considered the hospital records as well as the reports of Ms. Bester,
Dr Le Fevre, Dr Ogilvy, Ms De Wit and Ms Bekker.
[17] In his assessment of N[...] his findings were unremarkable. He opined as follows:
17.1 when conducting a physical examination he opined that:
“There was cosmetically obvious scaring on the forehead and chin”;
17.2 when conducting a central nervous system examination, he found that
N[...] was orientated, he had some difficulty expressing himself, the cranial
nerve examination was normal, and there was no focal neurological limb
deficit. He however opined that N[...] suffered a “traumatic brain injury with
facial lacerations”;
17.3 overall he opined that N[...] had made a good physical recovery and the
current physical neurological examination is normal;
17.4 his findings in his addendum report, is similar to his first report. In the
addendum report Dr Domingo further concludes that the WPI is 35% in
total. The mental and behavioural disorder was calculated to be 15%. In
this regard, he relied on Dr Sutherland’s opinion.
[18] The court a quo understandably had difficulty in accepting the reasoning set out in
Dr Domingo’s report and identified the inaccuracies, namely that:
18.1 he recorded that the hospital had performed x-rays and assessed N[...] as
having sustained a traumatic brain injury with associated facial lacerations
and forehead hematoma. This was not the case. No mention was made
of any brain injury in the hospital records. The x-rays was there to
establish whether there was any fracture on the bruised hands and the leg.
No such fractures were identified. Furthermore no CT scan was ever
performed on N[...];
18.2 His further recordal was that at the time of the discharge from hospital,
“N[...] experienced headaches, photophobia and was intermittently
confused and had difficulties in sleeping”. Again this was not the case.
The records showed that N[...]’s condition was unremarkable. He spent a
night in hospital and slept throughout. There were no complaints except
for the pain in his face and body. In the morning, he was found awake and
comfortable on the bed. When he was discharged, he received no
medication;
18.3 the only medication administered during his admission was paracetamol
on four different occasions and ibuprofen on three different occasions. He
was clearly treated for the physical pain. The court correctly emphasized
that the hospital records are the primary source with regard to the
determination of a clinical injury sustained by N[...] and justifiably
expressed that:
“It is difficult for this court to accept the evidence of Dr Domingo to the
effect that Mr E[...] experienced headaches, photophobia, was intimately
confused, and had difficulties in sleeping.”;6
6 Paragraph 12 of the judgment
18.4 the court also questioned Dr Domingo’s recordal that N[...] complained of
poor memory and concentration, zoning out, being in his own world, and
his difficulty in understanding and following instructions;
18.5 his opinion pertaining to the setting in of seizures was questioned. He
suggested that provision will be made for the investigation and treatment
of post-traumatic seizures. This court, in fact, noted that N[...] never
suffered from seizures;
18.6 more significantly at paragraph 19 of the judgment, the court highlighted
the inconclusiveness of Dr Domingo’s opinion. It expressed:
“Proper examination of the conclusions reached by Dr Domingo reveals
some measure of ambivalence as to the cause of the cognitive difficulties
which is the edifice of this alleged loss of earning capacity. The
ambivalence is more pronounced when the following opinion is carefully
considered:
‘8.3 He has residual cognitive, cognitive-communicative and
behavioural problems that have had a negative impact on his
school performance.
8.4 He has been affected psychologically by the accident and has
problems with anxiety.
8.5 Although cognitive and behavioural deficits would not be expected
considering the nature and the severity of the brain injury sustained,
it is noted that not all mild traumatic brain injuries are associated
with a good outcome. In addition, as no CT scan was performed, a
more focal brain injury cannot be excluded. His psychological
problems will also have a negative impact on his cognitive
functioning’.” (my emphasis)
[19] Against these observations, I am of the view that the court a quo cannot be
faulted in its findings. It was not convinced that N[...] suffered from severe long-
term behavioural disturbance and consequently found that the plaintiff has failed
to prove on a balance of probabilities that N[...] sustained severe head injuries
which would have the consequence of a severe long-term behavioural
disturbance and which impacted on his earning capacity.
[20] Demonstrably Dr Domingo’s report lacked cogency. He failed to independently
make a conclusive finding. It is common cause that a CT scan was never
performed. A neurosurgeon plays a critical role by providing his expertise on
brain injury. Dr Domingo was required to evaluate the severity of the trauma,
determine the long-term progress, and establish if it can be linked to the accident.
He not only relied on incorrect facts, but on the opinions of the experts who
already examined him. These experts established that N[...] suffered a mild brain
injury.
[21] The court a quo further took issue with the information that was relayed to the
various experts. It correctly highlighted the inaccurate information that N[...]’s
father relayed to the experts. It is not in dispute that he was present at all the
consultations with the experts. An expert cannot merely rely on the patient or his
family’s ipse dixit. The self-reported symptoms relayed by the father was not
clinically tested.
[22] It is settled law that for an opinion to be underpinned by proper reasoning, it must
be based on correct facts. In Bee, at paragraph 23, the court expressed:
“The facts on which the expert witness expresses an opinion must be capable of
being reconciled with tall the other evidence in the case. For an opinion to be
underpinned by proper reasoning, it must be based on correct facts. Incorrect facts
militate against proper reasoning and the correct analysis of the facts is paramount
for proper reasoning, failing which the court will not be able to properly assess the
cogency of that opinion. An expert opinion which lacks proper reasoning is not
helpful to the court.”
N[...]’s academic performance
[23] With regard to the minor’s academic performance, the court considered the
reports of the educational psychologist. Ms Clerk examined the minor 9 years
after the accident when he was 17 years of age. The court notably highlighted the
inaccuracy of the information recorded in Ms Clerk’s opinion concerning his
absence from school. The truth was that N[...] was only absent from school for
seven days and not for the entire third term as the father advised.
[24] The court a quo highlighted that N[...]’s performance was par excellence in Grade
1 after the accident. He performed excellently for months after the accident. The
criticism was that to merely state his academic performance deteriorated later in
his schooling career was inadequate. There was no explanation as to how and
when N[...]’s deficits started becoming apparent. It cannot be gainsaid that the
experts failed to address this aspect. Even in Grade 2, the minor achieved 80 to
100% in his lifeskill subject (that was about 6 months after the accident).
[25] Even if I were to accept the evidence of Dr Domingo, that N[...] was “experiencing
headaches, photophobia, confusion, and struggling to sleep” after the accident, it
does not explain how N[...] managed to perform so well after the accident. His
academic performance seemed to decline during Grade 4. His performance was
then gaged to be better in Grade 7.
[26] N[...] was injured whilst he was in Grade 1. Ms Clerk had recorded N[...]’s
academic performance in her report, that is:
26.1 in Grade 1 his performance was excellent, he obtained 70 to 79% average;
26.2 in Grade 2 the marks achieved was 60 to 69% level of performance;
26.3 in Grade 3 he still maintained 60 to 69% level of performance;
26.4 in Grade 4 his level of performance declined to 50-59%;
26.5 in Grade 5 his average level of performance was between 30-39%;
26.6 in Grade 6 his overall marks was 30-39%;
26.7 in Grade 7 he attained an achievement of 50-59%, although he failed
mathematics, economic business science and geography.
[27] The court further raised concern with the insufficient information pertaining to the
social factors, in particular, to the effect that gangsterism had on N[...] when it was
the very reason that caused N[...] to leave school. The court, in my view, correctly
pointed out that the experts failed to address this issue. Only Ms Clerk had
commented that the socio-emotional factors as well as the social pressures and
safety concerns due to the gang violence had contributed to him prematurely
exiting his education.
[28] In my view, the court justifiably raised the questions: when did the gangsterism
issue start affecting N[...] and what effect, if any, did it have on his school
performance. These aspects were not addressed. Hence the court expressed:
“All the availed experts seem to be fixated to one trigger regarding the decline in
school performance that is, the accident injuries and their sequelae. What about
other possible triggers once having witnessed gangsterism. There is evidence
that at Grade R, Mr E[...] was playful and was not sitting still. Would the
playfulness have emerged at Grade 2, which may have impacted on his school
performance.”
[29] Due to the insufficient evidence, the court a quo was not convinced that N[...]’s
injuries, arising from the accident, would impact on his earning capacity.
Consequently, the court expressed that:
“Having accepted that Mr E[...] suffered mild concussive head injury, this court is
unable to accept the opinion of Dr Domingo that Mr E[...] suffered severe long-
term behavioural disturbance which is capable of causing him a loss of earning
capacity.”
[30] It is trite that an expert is required to assist the court, but the evaluation of expert
opinion ultimately remains the responsibility of the court. In Michael and
Another v Linksfield Park Clinic and Another7 the Supreme Court of Appeal
explained that an expert’s opinion carries weight only to the extent it is grounded
in facts that are common cause, established by evidence, or capable of being
proved. The court cautioned that a court is not bound to accept an expert’s
conclusions and must be satisfied that the reasoning process leading to it is
sound. Ultimately the plaintiff bears the onus to establish the causal link between
the accident and the injuries relied upon.
[31] The expert opinion must amount to a logical and reasoned inference from proved
facts and such proved facts should be scrutinized where the opinion rests on
assumptions not supported by the evidence.
[32] It should be reiterated that the court was not seized with determining the cause of
the educational outcomes complained of but with whether the plaintiff had
discharged the onus of proving the claim of loss of earning capacity and loss of
income, including causation.
[33] The neurosurgeon’s conclusive evaluation would have put to bed the uncertainty
of the minor’s injuries. It was for this very reason that Ms de Wit deferred to the
neurosurgeon or neurologist for an opinion. She in fact opined that N[...]’s
performance was average and his IQ fell in the average range.
[34] It can further not be disputed that both Ms de Wit, the clinical psychologist, and
Ms Schoeman, the neuropsychologist who examined N[...] before Dr Domingo,
7 2001 (3) SA 1188 (SCA), paragraphs 34 to 36
had relied on information the father relayed to them. It was Dr Domingo’s role to
establish the severity of the injury, if any, and the extent to which it impacted on
N[...].
[35] In conclusion I find no misdirection on the part of the court a quo. Hence there is
no reason for this court to interfere.
THE S17(4) UNDERTAKING
[36] The appellant directed this court to the fact that s17(4)(a) of the Act does not
prescribe limitations to future treatment that a claimant may require. Accordingly
N[...] would be entitled to the treatment as envisaged in Section 17(4)(a) of the
Act. In my view, the court a quo correctly crafted the s17(4) undertaking order.
THE GENERAL DAMAGES
[37] The appellant correctly pointed out that the general damages constitute a
separate head of damages. In this instance, the court was advised that it had
requested reasons from the HPCSA for failing to find that his injuries are severe.
Upon receipt of such reasons, it intends to appeal the decision. In the
circumstances, the general damages should be postponed sine dies.
COSTS
[38] The appellant is substantially unsuccessful in this appeal and there is no reason
why the general principle- that costs follow the result should not be applied.
Consequently it should bear the costs of this appeal.
_____________________________
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the appellant: Adv. BP Geach SC
Adv. A Laubscher
Instructed by: Adendorff Attorneys Inc
Counsel for the respondent: No appearance
Date heard: 28 January 2026
Date of Judgment: 28 April 2026