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)
JUDGMENT
Reportable
Case No.: 1321/2016
In the matter between:
B[...] P[...] J[...]-N[...] obo I[...] N[...] Plaintiff
And
THE ROAD ACCIDENT FUND Defendant
Coram: Francis J
Heard: 19 May 2026
Delivered: 3 June 2026
ORDER
______________________________________________________________________
1. The defendant shall pay the plaintiff’s attorneys the sum of R5 220 425.00 (five
million two hundred and twenty thousand four hundred and twenty -five rand)
(“the capital”), made up of R4 120 425.00 for the future loss of earning capacity
and R1 100 000.00 for general damages, by electronic transfer into the trust
account identified in paragraph 9 below.
2. The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4)(a)
of the Act to compensate the plaintiff and/or I[...] N[...] for 100% of the costs of
the future accommodation of I[...] in a hospital or nursing home, treatment of or
rendering of a service or supplying of goods to him arising from the collision of 9
June 2013, after those costs have been incurred and on proof thereof.
3. The defendant shall pay the plaintiff’s taxed or agreed costs on the High Court
scale as between party and party, which costs shall include but not be limited to
—
3.1 the qualifying, reservation, preparation and attendance fees (where
applicable) of the plaintiff’s experts Dr Z Domingo (neurosurgeon), Ms
Debbie Lopes (educational psychologist), Dr D Ogilvy (speech and
language therapist), Ms E Auret -Besselaar (industrial psychologist) and
Munro Forensic Actuaries, together with the costs of their reports and any
addenda;
3.2 the reasonable reservation and attendance fee of Ms E Auret -Besselaar
for 19 May 2026, subject to the discretion of the Taxing Master;
3.3 the fees of the plaintiff’s counsel on Scale B, including consultations,
judicial case-management attendances, preparation, the practice note and
written submissions, and the day fee for 19 May 2026;
3.4 the costs of the plaintiff’s attorney attending the Rule 37(8) pre -trial
conferences and the costs of the Rule 38(2) application;
3.5 all costs attendant upon obtaining payment of the capital and of the costs.
4. The defendant shall pay the capital within 180 calendar days of the date of this
order, failing which interest shall run on the capital at the applicable legal rate
from 14 calendar days after the date of this order to the date of final payment.
5. The plaintiff shall not issue a warrant of execution in respect of the capital before
the expiry of the 180-day period.
6. The taxed or agreed costs shall be paid within 180 calendar days of taxation or
agreement, by electronic transfer into the trust account identified in paragraph 9
below, failing which interest shall run at the applicable legal rate from 14 calendar
days after the Taxing Master’s allocatur or the agreement of costs to the date of
final payment. The plaintiff shall not issue a warrant of execution in respect of the
costs before the expiry of that period.
7. Pending the determination of the application referred to in paragraph 8, the
capital shall be retained in the trust account of the plaintiff’s attorneys and shall
not be paid over to the plaintiff personally, save for any disbursements
necessarily incurred, or required, for and on behalf of I[...] N[...].
8. The plaintiff’s attorneys are directed to bring an application in terms of Rule 57 of
the Uniform Rules of Court, within 90 calendar days of the date of this order, for
the appointment of a curator ad litem to investigate and report on whether I[...]
N[...] requires the appointment of a curator bonis or a trust to administer the
capital. If compliance with this direction is not achieved within the stated period,
capital. If compliance with this direction is not achieved within the stated period,
the Registrar is directed to bring the matter before me for further directions.
9. Payment of the capital and of the costs shall be made into the following trust
account:
Bank: FNB Business
Account holder: De Vries Shields Chiat Inc.
Branch: Portside
Account number: 6[...]
Branch code: 210651
______________________________________________________________________
JUDGMENT
______________________________________________________________________
FRANCIS, J:
Introduction
[1] The plaintiff sues in her representative capacity as the mother and natural
guardian of her minor son, I[...] N[...], who was born on 24 June 2010. On 9 June
2013, a fortnight short of his third birthday, I[...], a pedestrian, was struck by a
motor vehicle. He was then two years and eleven months old.
[2] The defendant has conceded liability and accepts that I[...] sustained serious
injuries that qualify for an award of general damages under the Road Accident
Fund Act 56 of 1996 (“the Act”). What remains in dispute is the quantum under
two heads. The first, pleaded as a future loss of earnings, is more properly a
claim for the loss of earning capacity. The second is general damages. The
defendant has agreed to furnish an undertaking under s 17(4)(a) of the Act for
I[...]’s future hospital, medical and related expenses, and that head requires no
adjudication.
[3] By agreement, the plaintiff’s application under Rule 38(2) to adduce the evidence
of her experts on affidavit was granted. The expert reports and the joint minutes
accordingly stand as the evidence before me. No oral evidence was led. I heard
argument from counsel for the plaintiff and from the defendant’s attorney, and I
have had regard to the plaintiff’s heads of argument and the submissions made
from the bar. Although the dispute is one of quantum, it raises a question of some
general importance that I consider it useful to address: how general damages are
to be assessed where a traumatic brain injury is clinically mild but is sustained by
an infant whose developing brain renders the injury disabling over the course of
his life. I deal with that question under the head of general damages below.
The injuries and the medical evidence
[4] The collision left I[...] with a mild traumatic brain injury accompanied by a
transient loss of consciousness, a small posterior fossa extra -axial haematoma
demonstrated on CT and confirmed on MRI, post -traumatic seizures, scalp
abrasions and lacerations, a left peri -orbital haematoma with marked swelling of
the left eye, and an abrasion of the left hand. The dispute does not turn on the
mechanism of injury but on its lasting consequences for a brain that was still
developing when it was injured.
[5] The neurosurgeons, Dr Z Domingo for the plaintiff and Dr M S Mohale for the
defendant, recorded their agreement in a joint minute dated 6 December 2024.
They agree that I[...] sustained a mild traumatic brain injury; that he is left with
residual cognitive deficits and significant behavioural problems, the onset of
which the collateral history dates to this accident; and that, although a mild brain
injury frequently resolves well, a minority of such injuries, of the order of 15 per
cent, leave permanent cognitive impairment. They agree that he had late post -
traumatic seizures within the year following the accident, that his seizure risk
remains above the population average, and that, more than a decade on, his
deficits are permanent. Both experts consider that the injury qualifies as serious
under the Narrative Test at paragraph 5.3, namely a severe long -term mental or
under the Narrative Test at paragraph 5.3, namely a severe long -term mental or
behavioural disturbance or disorder. The whole person impairment was assessed
at 20 per cent.
[6] Dr Dale Ogilvy, a speech and language therapist, assessed I[...] in 2019. On
formal testing she found significant cognitive -communicative deficits: slowed
semantic processing, slowed interpretation of auditory verbal information,
reduced verbal working memory, disturbed auditory attention, inefficient listening
comprehension and impaired recall of verbal information. She regards these as
permanent and as directly attributable to the brain injury, and as deficits that will
hamper I[...] in both his schooling and any form of employment. The history she
obtained was of a child who, before the accident, had reached his milestones
early and was bright, talkative and interactive.
[7] The neuropsychologist, Ms Gumbi, assessed I[...] in August 2024. She found his
global intelligence quotient to fall within the mild range of intellectual disability,
with compromised language development, impaired abstract reasoning,
significantly impaired auditory short-term memory, impaired visual perception and
problem-solving, and a psychosocial profile marked by emotional and social
withdrawal, aggression and feelings of inadequacy.
[8] The educational psychologists, Ms Debbie Lopes for the plaintiff and Dr Xolani
Fakude for the defendant, agreed in a joint minute dated 19 February 2025 that,
but for the accident, I[...] would have completed Grade 12 and progressed to
tertiary study, attaining at least an NQF level 6 qualification and possibly an NQF
level 7 degree, in keeping with the educational achievements of his immediate
and extended family. They agree that, as matters now stand, he has significant
learning delays. He will not pass Grade 12 and at best may reach Grade 9 and
acquire a basic skill in sympathetic employment , and he will in any event remain
a vulnerable competitor in the open labour market by reason of his cognitive -
communicative deficits, behavioural difficulties, low frustration tolerance,
headaches and elevated seizure risk.
Future loss of earning capacity
headaches and elevated seizure risk.
Future loss of earning capacity
[9] The industrial psychologists, Ms Esther Auret -Besselaar for the plaintiff and Ms
Moipone Kheswa for the defendant, agreed the pre - and post-morbid scenarios
in a joint minute dated 23 April 2026. Munro Forensic Actuaries prepared a report
dated 24 April 2026 on those agreed scenarios.
[10] On the uninjured path, I[...] would have matriculated, entered the labour market
after a short period of job -seeking, and progressed from entry -level earnings
through semi -skilled and skilled work, reaching the Paterson C1/C2 band by
about age 45 and working to retirement at 65. On the injured path, he will not
matriculate, will be confined to entry -level minimum -wage work if he is
employable at all, will not progress, and is at high risk of cyclical employment
and, in time, of being unemployable in a competitive market.
[11] On those scenarios the actuary calculated a net future loss of R4 950 215,
applying contingency deductions of 15 per cent pre -morbid and 60 per cent post-
morbid, and R4 120 425, applying deductions of 25 per cent pre -morbid and 50
per cent post -morbid. In argument the plaintiff accepted the 25 and 50 per cent
basis. The defendant contended for a deduction of 30 per cent on each leg.
[12] The assessment of a future loss of this kind is not an exercise in arithmetic
certainty. An actuarial calculation is a useful tool, but the court retains a wide
discretion and is not bound by an inexorable computation (Southern Insurance
Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 113G –114E). Contingencies
exist to accommodate the ordinary vicissitudes of life . While a sliding scale offers
guidance, each case turns on its own facts. The child in Bailey was, like I[...], very
young when injured. She was two years old, and a contingency in the region of a
quarter was held appropriate for the speculative uninjured future of a child of that
age.
[13] Two considerations bear on the contingency assessment. The uninjured path
rests substantially on an extrapolation from family achievement for a child injured
before he had begun formal schooling . A future of that kind is inherently
before he had begun formal schooling . A future of that kind is inherently
speculative and warrants a pre -morbid deduction higher than the figure
conventionally applied to an established young earner. The injured path, by
contrast, is one the experts regard as close to unemployable . This justifies a high
post-morbid deduction, though not one so high as to extinguish the very loss the
experts are agreed he will suffer. Weighing those considerations against the joint
minutes, I[...]’s age at injury and his supportive background, I am satisfied that
deductions of 25 per cent pre-morbid and 50 per cent post-morbid are fair to both
parties. The defendant’s symmetrical 30 per cent understates the gravity and
permanence of the limitation on the injured path, while the actuary’s primary
basis of 15 and 60 per cent is, on these facts, too generous to the plaintiff on the
uninjured path and too severe on the injured path.
[14] On that basis the net future loss of earning capacity is R4 120 425, which I
accept.
[15] The parties and the actuary are agreed that the statutory cap in s 17(4)(c) of the
Act has no material effect on the result, because the projected earnings on which
the loss is computed fall well within the cap, so that the limitation does not
operate. As the upper guardian of the minor I should not accept such a
concession without satisfying myself of its basis; having done so, I am content
that it is correctly made.
General damages
[16] General damages are claimed for pain and suffering, loss of the amenities of life,
disability and disfigurement. The governing principles are well settled. The award
must be fair to both sides . C omparable awards, adjusted for inflation, furnish
broad guidance and serve consistency, but they do not displace the court’s
discretion or bind it to the arithmetic of earlier cases , and the enduring effect of
the injury on this claimant is what is ultimately decisive ( De Jongh v Du Pisanie
NO 2005 (5) SA 457 (SCA) at 475 –477). The court must give just compensation,
but it must not, in the dictum approved in that case, be overly generous at the
defendant’s expense.
[17] The label “mild” attached to this brain injury must not be allowed to obscure its
effect. I[...] was injured at a critical stage of neurological development, when an
immature brain is more vulnerable to diffuse injury and when the acquisition of
cognitive and social skills may be compromised in ways that become more
apparent as the child grows. The sequelae here are not transient. He is left with
permanent deficits in processing speed, memory, attention and comprehension ,
behavioural and emotional dysregulation , scholastic underachievement well
below his pre -morbid potential, social difficulty and frustration , and a continuing
elevated risk of seizures. Those consequences extend to his schooling, his
employability, his independence, and his ordinary enjoyment of life.
[18] This case raises, perhaps more starkly than the decided authorities have hitherto
done, a question that recurs in road accident litigation involving young children.
Where a traumatic brain injury is clinically classified as “mild”, but the victim was
an infant whose brain was still developing, how are general damages to be
assessed? The feature that makes such an injury disabling, its diffuse
interference with normal neurodevelopment, is precisely what the “mild” label
hides. The point is not merely evidential. It goes to how the comparative exercise
is conducted, and it is one on which practitioners continue to err, arranging
comparable awards by the severity label attached to the primary injury rather
than by its proven effect.
[19] In my view , the clinical grading of a brain injury as mild, moderate or severe
describes only the acute insult. It measures what happened to the brain at the
moment of trauma, not what the injury will do to the person over a lifetime. The
two may diverge markedly, and they diverge most widely in the very young. An
immature brain injured before the acquisition of language, scholastic and social
competencies may sustain diffuse damage that is clinically mild yet
developmentally decisive, because the injury does not mere ly impair an existing
faculty but compromises the acquisition of faculties not yet formed. The disabling
faculty but compromises the acquisition of faculties not yet formed. The disabling
consequence is therefore latent at the time of injury and emerges only as the
child is required, year on year, to do what the injury has rendered him less able to
do. It follows that, in the assessment of general damages for a brain injury
sustained in early childhood, the severity label attached to the primary injury
does not govern the enquiry and imposes no ceiling. The enquiry is governed
instead by the proven, permanent effect of the injury on this claimant, assessed
over the whole of his life and including its developmental dimension. The
principle articulated for an adult in Braun obo Tiripano v Passenger Rail Agency
of South Africa [2025] ZAWCHC 141, that a clinically mild injury may have a
serious outcome and that it is the actual effects on the claimant that matter,
applies with greater force, not less, where the claimant is an infant. The
developmental dimension is a discrete aggravating feature, to be brought to
account in its own right.
[20] That principle bears on the use of comparable awards. Where the comparators
are, on the one hand, adults with more severe injuries and, on the other, children
of similar age with more severe or progressively worsening injuries, they are not
measures of equivalence for a young child with a clinically mild but
developmentally significant injury. They serve rather to mark out the range within
which the award must fall, the adult comparators indicating the level appropriate
to comparable functional sequelae without the developmental dimension, and the
more severe paediatric comparators indicating the upper reach that the category
does not exceed. The court’s task is to place the claimant within that range by
reference to the developmental dimension and the permanence of the proven
sequelae, not to match a figure to a severity label. With that approach in mind, I
turn to the awards counsel placed before me.
[21] The authority closest in subject -matter to the present case is Braun obo Tiripano
itself, where an adult who sustained a traumatic brain injury with neuro -
behavioural sequelae and monocular vision loss received an award with a
present-day value of approximately R1 025 000. The remaining authorities relied
upon cluster, in present -day terms, between roughly R1 020 000 and R1 380
upon cluster, in present -day terms, between roughly R1 020 000 and R1 380
000. They include Vakata v Road Accident Fund 2014 (7A4) QOD 1 (ECP) (R1
118 000, adjusted), Benjamin NO v Road Accident Fund 2005 5 QOD B4-205 (C)
(R1 221 000), Mofokeng v Road Accident Fund 2015(7B4) QOD 12 (GSJ) (R1
229 000), Noble v Road Accident Fund 2011 (6J2) QOD 54 (GSJ) (R1 248 000),
Adlem v Road Accident Fund 2003 5 QOD J2 -41 (CA) (R1 280 000), Smit v
Road Accident Fund 2013 (6A4) QOD 188 (GNP) and Potgieter v Road Accident
Fund 2013 (6A4) QOD 195 (ECP) (each about R1 281 000), and Nsibande v
Road Accident Fund 2022 (8B3) QOD 1 (GNP) (R1 379 000). Several involve
more severe brain injuries or significant additional orthopaedic injury , which
places them towards the upper end of that band.
[22] Counsel for the plaintiff also relied, correctly in my view, on a decision of this
Division closer on its facts than any of the foregoing , C.D.K obo C.L.K v Road
Accident Fund (1809/2022) [2025] ZAWCHC 149. The injured child there was
three years and eleven months old at the time of the collision, a year older than
I[...] but at much the same point in early childhood, and came, as I[...] did, from a
family whose educational achievements pointed to a tertiary qualification but for
the injury. The court awarded R2 000 000 in general damages. That authority
does not, however, carry the plaintiff to the figure she seeks; instead, it points the
other way. The primary injury in C.D.K was markedly more serious than I[...]’s,
being a skull fracture with generalised brain swelling, and the sequelae worsened
over time, with post -traumatic epilepsy, attention deficit and a documented
deterioration on later assessment. I[...]’s injury, by the agreed classification of
both neurosurgeons, is mild, and his sequelae, though permanent and serious,
have not followed that progressive course. C.D.K is therefore most useful not as
a measure of equivalence but as a marker of the upper reach of this category . A
young child of much the same age, with a more severe injury and a worsening
trajectory, attracted R2 000 000, which places I[...]’s milder, non -progressive
injury appreciably below that level.
[23] Drawing these threads together, I[...]’s injury is, on the agreed expert
classification, mild. But its permanent cognitive, behavioural and developmental
classification, mild. But its permanent cognitive, behavioural and developmental
consequences in a child injured before he had begun school are substantial and
lifelong. He falls above the adult comparators, in which the developmental
dimension is absent, but well below C.D.K, in which a child of much the same
age suffered a more severe injury with a worsening course. His case belongs in
the upper part of the range marked out by the authorities' counsel placed before
me, but not at or beyond its upper limit. Bearing in mind fairness to the defendant
and the interrelationship between this head and the substantial award for loss of
earning capacity, I consider an award of R1 100 000 to be fair and reasonable.
That sum reflects the real and permanent impairment I[...] has suffered, including
its developmental dimension, and accords with the pattern of comparable awards
and his place within them. It is the amount I award.
Protection of the award and the position of the minor
[24] I[...] is a minor whose cognitive functioning falls within the mild range of
intellectual disability and who has significant behavioural difficulties. As the upper
guardian of the minor, the court must ensure that the award is protected and
applied for his benefit. The protection of the award was not raised on the
pleadings but was raised by plaintiff’s counsel at the hearing. That is no obstacle.
The pleadings define the cause of action and the substantive relief in issue
between the parties, but they do not exhaust the court’s jurisdiction. The manner
in which a sum awarded to a minor is to be secured engages the power of the
court as the upper guardian of every minor, a position rooted in the common law
and reinforced by s 28(2) of the Constitution, which makes a child’s best interests
of paramount importance in every matter concerning the child, and given
practical effect in a case such as this by Rule 57 of the Uniform Rules of Court. In
that capacity, the court is not confined to the relief the parties have chosen to
seek. It may, and where the minor’s interests require it must, act of its own
accord to see that money awarded for the child reaches and benefits the child.
Neither the absence of a prayer to that effect nor the availability of a willing
natural guardian is decisive. What matters is the court’s own assessment of what
natural guardian is decisive. What matters is the court’s own assessment of what
the interests of the minor require. The expert evidence raises a genuine doubt as
to whether he will be able to manage a substantial capital sum, whether as a
major or at all.
[25] The proper course is for the plaintiff’s attorneys to bring an application under
Rule 57 for the appointment of a curator ad litem to investigate and report on
whether a curator bonis or trust is required. I have taken the more conservative
of the courses open to me. Rather than appointing a curator bonis myself, or
directing the creation of a trust, on the strength of the present record, I direct only
that the question be investigated and reported on, and I secure the capital in the
meantime. That leaves the substantive decision to a process in which the Fund,
the plaintiff and the curator ad litem may each be heard, and it prejudices no one.
The capital is to be retained in the attorneys’ trust account pending the outcome
of that application and is not to be paid over in the interim. The application must
be brought within 90 calendar days of this order, failing which the Registrar is
directed to bring the matter before me for further directions.
Costs, including counsel’s fees
[26] The plaintiff seeks costs on the High Court scale, with counsel’s fees on Scale C.
Counsel submitted that the value of the claim, the involvement of multiple expert
disciplines and the seniority at which he practises justify the higher scale, and
that a lower scale would erode the minor’s award through irrecoverable fees. The
defendant’s attorney contended for Scale A, the matter having been disposed of
on the papers.
[27] This was a substantial quantum matter concerning a minor with permanent
neuro-cognitive and behavioural sequelae. Its proper resolution called for the
evaluation of several expert fields and a detailed actuarial analysis, which tells
against the lowest scale. But it was ultimately decided without oral evidence
following the Rule 38(2) order, which tells against the highest. The scale that fits
the work actually required, while remaining proportionate and protective of the
minor’s interests, is Scale B. I award counsel’s fees on that scale.
Order
minor’s interests, is Scale B. I award counsel’s fees on that scale.
Order
In the result, I make the following order.
1. The defendant shall pay the plaintiff’s attorneys the sum of R5 220 425.00 (five
million two hundred and twenty thousand four hundred and twenty -five rand)
(“the capital”), made up of R4 120 425.00 for the future loss of earning capacity
and R1 100 000.00 for general damages, by electronic transfer into the trust
account identified in paragraph 9 below.
2. The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4)(a)
of the Act to compensate the plaintiff and/or I[...] N[...] for 100% of the costs of
the future accommodation of I[...] in a hospital or nursing home, treatment of or
rendering of a service or supplying of goods to him arising from the collision of 9
June 2013, after those costs have been incurred and on proof thereof.
3. The defendant shall pay the plaintiff’s taxed or agreed costs on the High Court
scale as between party and party, which costs shall include but not be limited to
—
3.1 the qualifying, reservation, preparation and attendance fees (where
applicable) of the plaintiff’s experts Dr Z Domingo (neurosurgeon), Ms
Debbie Lopes (educational psychologist), Dr D Ogilvy (speech and
language therapist), Ms E Auret -Besselaar (industrial psychologist) and
Munro Forensic Actuaries, together with the costs of their reports and any
addenda;
3.2 the reasonable reservation and attendance fee of Ms E Auret -Besselaar
for 19 May 2026, subject to the discretion of the Taxing Master;
3.3 the fees of the plaintiff’s counsel on Scale B, including consultations,
judicial case-management attendances, preparation, the practice note and
written submissions, and the day fee for 19 May 2026;
3.4 the costs of the plaintiff’s attorney attending the Rule 37(8) pre -trial
conferences and the costs of the Rule 38(2) application;
3.5 all costs attendant upon obtaining payment of the capital and of the costs.
4. The defendant shall pay the capital within 180 calendar days of the date of this
order, failing which interest shall run on the capital at the applicable legal rate
from 14 calendar days after the date of this order to the date of final payment.
5. The plaintiff shall not issue a warrant of execution in respect of the capital before
the expiry of the 180-day period.
6. The taxed or agreed costs shall be paid within 180 calendar days of taxation or
agreement, by electronic transfer into the trust account identified in paragraph 9
below, failing which interest shall run at the applicable legal rate from 14 calendar
days after the Taxing Master’s allocatur or the agreement of costs to the date of
final payment. The plaintiff shall not issue a warrant of execution in respect of the
costs before the expiry of that period.
7. Pending the determination of the application referred to in paragraph 8, the
capital shall be retained in the trust account of the plaintiff’s attorneys and shall
not be paid over to the plaintiff personally, save for any disbursement s
necessarily incurred, or required, for and on behalf of I[...] N[...].
8. The plaintiff’s attorneys are directed to bring an application in terms of Rule 57 of
the Uniform Rules of Court, within 90 calendar days of the date of this order, for
the appointment of a curator ad litem to investigate and report on whether I[...]
N[...] requires the appointment of a curator bonis or a trust to administer the
capital. If compliance with this direction is not achieved within the stated period,
the Registrar is directed to bring the matter before me for further directions.
9. Payment of the capital and of the costs shall be made into the following trust
account:
Bank: FNB Business
Account holder: De Vries Shields Chiat Inc.
Branch: Portside
Account number: 6[...]
Branch code: 210651
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Plaintiff: Adv Wayne Coughlan
Instructed by: DSC Attorneys
For Respondent: Mr Muhammed Arbee
Instructed by State Attorney (Cape Town)