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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
CASE:077365/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 14 May 2026
SIGNATURE
In matter between
O[...] T[...] P[...] Plaintiff
And
THE ROAD ACCIDENT FUND Defendant
JUDGMENT
RAIKANE, AJ
Introduction
1. This matter came before me as a default judgment in an action for damages
arising from a motor vehicle collision.
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2. The plaintiff, O[...] T[...] P[...], claims damages against the defendant, the Road
Accident Fund, in terms of section 17 of the Road Accident Fund Act 1, arising from
injuries allegedly sustained in a motor vehicle collision on 29 January 2023.
3. At the commencement of the proceedings, applications in terms of Rule 33(4)
and Rule 38(2) were granted.
Factual background
4. The plaintiff was born on 19 April 2005 . On 29 January 2023 , she sustained
injuries as a passenger in a motor collision. She was 17 years 9 months old at the
time of the collision and doing Grade 12 which she passed with a Bachelor’ s
admission and enrolled for BCom Law degree the subsequent year.
5. The delictual claim for damages against the defendant was initially instituted on
her behalf by her mother whom she replaced after attaining the age of majo rity. All
the heads of damages are outstanding.
6. The total amount claimed is R17 200 000 calculated as follows:
6.1 general damages: R1 000 000;
6.2 past medical expenses R120 000;
6.3 future medical expenses R1 200 000 and;
6.4 loss of earnings capacity/ earning R14 000 000.
7. The particulars of claim allege injuries as confirmed in the RAF 1 form, the
plaintiff’s section19(f) of the Road Accident Fund Act affidavit and the hospital
records are contusion of the forehead, swelling of the right eye, painful neck,
sprained and strained cervical spine . The plaintiff further alleges a loss of
consciousness at the scene which was regained in the ambulance.
1 Act 56 0f 1996.
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8. The plaintiff was evacuated to Midstream Med -Clinic and was discharged the
same day. X-rays were done of the cervical spine, and no GCS reading was noted
in the hospital record. According to the X-ray results, dated 1 February 2023 , there
was no structural damage nor preverbal soft tissue swelling , only the following was
noted:
8.1 Cervical Lordosis replaced by a kyphotic curve
8.2 Vertebral body heights normal;
8.3 Th C1 interval cannot be really evaluated; and
8.4 Some minimal spasm induced scoliosis.
9. The plaintiff only received conservative treatment in the form of analgesics,
neuro- observations and rehabilitation in the form of physiotherapy was
recommended. The lacerations were also cleaned and dressed.
Merits
10. The plaintiff as indicated above, was a minor and in terms of the principle of doli
incapax no contributory negligence can be attributed to the minor. The fund therefore
held 100% liability for any proven damages.
The quantum
11. The fund has not made any election on the issue of general damages, and
such is postponed sine die.
The loss of earnings / capacity
12. The plaintiff appointed a plethora of experts to quantify the loss namely:
12.1 Neurosurgeon;
12.2 Orthopedic surgeon;
12.3 Neuropsychologist;
12.4 Educational Psychologist;
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12.5 Clinical Psychologist;
12.6 Physiotherapist;
12.6 Occupational Therapist;
12.7 Industrial Psychologist; and
12.8 An actuary.
13. In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2, the
Supreme Court of Appeal stated that the court must determine whether the opinion
advanced is founded on logical reasoning.
"The court is not bound to absolve a defendant from liability for allegedly negligent
medical treatment or diagnosis just because evidence of expert opinion, albeit
genuinely held, is that the treatment or diagnosis in issue accorded with sound
medical practice. The court must be satisfied that such opinion has a logical basis."
14. Generally in this matter, the quantifying of the loss / loss of earning capacity of
the plaintiff will depend heavily on the unique personal circumstances of the plaintiff,
the nature of the injuries sustained, the treatment given /or to be also given in the
future and most of all the sequalae of the injuries on either the present or future work
prosperity and earnings. In Road Accident Fund v Guedes3, the Court confirmed that
loss of earning capacity is a matter of assessment based on the available evidence
and the exercise of judicial discretion.
15. The plaintiff was treated conservatively by cleaning and dressing of the
abrasions on the forehead , physiotherapy, analgesics and neuro observation and
was discharged the same day with no follow up treatment s ordered. Some of the
experts appointed reports admissions of 3 days.
16. The primary clinicians noted that no GCS was noted on the hospital record
upon admission and he nonetheless classified the contusion as a mild to moderate
brain injury resulting in the neurological deficit/ impairment which has now been
2 2001 (3) SA 1188 (SCA) at para 37.
3 2006 (5) SA 583 (SCA).
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resolved a year after the accide nt. The WPI was said to be 44 % and that the MMI
has been reached.
17. The X-ray confirmed that the re were no structural damages and an orthopedic
surgeon was appointed who not only submitted a report in which he mentioned the
treating medical facility was the Tembisa hospital in stead of Midstream Mediclinic.
The report also commented more on the neurological issues other than any
orthopedic sequalae. He on his own also added an injury of a forearm which was not
present to the list of injuries; The report is not taking this matter any further.
18. The neuropsychologist on behavioral and emotional fallouts opined that the
plaintiff might have had premorbid fallouts and that the prognosis is guarded.
19. The educational psychologist opines that the plaintiff will be more suitable for a
NQF level 5 at a TVET College qualifications despite the fact the plaintiff obtained a
Bachelor’s admission matric certificate post-morbid and is already first year BCom
Law student at a private university and her academic progress is impressive.
20. The plaintiff is also adding fire to the basis for the quantification of her claim, as
she raises additional different injuries not documented in the hospital records and the
sequalae thereof to the different experts appointed, amongst others, painful leg when
walking, painful arm when lifting objects, anxiety, depression, outburs t, impaired
cognitive difficulties and concentration when studying . In Southern Insurance
Association Ltd v Bailey NO 4, the Appellate Division explained that damages for loss
of earning capacity are often incapable of exact calculation and may require a broad
estimate, but such estimate must still be grounded in the evidence.
21. The actual postulation on the total amount for the loss of earnings marred by
the inconsistency as alluded to above and to avert the miscarriage of justice a re -
assessment cannot be ruled out.
4 1984 (1) SA 98 (A) at page 368.
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22. There was no vouchers and confirmation on an affidavit by the experts who
rendered the services no r the service provider on the actual amount disbursed to
cover the past medical costs.
Order
23. I, therefore, order the following:
1. The application in terms of Rule 38(2) is granted.
2. The Defendant is 100% liable for the plaintiff’s proven damages,
3. The Defendant is liable to provide the plaintiff with an undertaking as provided
for in section 17(4)(a) of the Road Accident Fund Act for 100% of such future
hospital; medical and ancillary expenses as the plaintiff may require and arising
from the injury sustained in the accident on 29 April 2023.
4. The issue of quantum is postponed sine die and the plaintiff to be re -assessed
by the relevant experts as per the hospital records and the sequalae thereof on
the impact it had on the issue of the loss of earnings/ earning capacity.
5. The plaintiff is awarded her party and party costs as taxed or agreed, Counsel’s
fees to be on Scale B.
__________________
RAIKANE AJ
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 14 May 2026
Heard: 10 December 2025
Date of Judgment: 14 May 2026
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Appearances
For the Applicants: Adv. S. Dlali
instructed by Modibedi Sebele Phetoe Attorneys
For the Respondent: No appearance