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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024/124843
In the matter between: -
M[…] M[… ] I[…] N[…] Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
DELIVERED: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e-mail and publication on CaseLines. The date and
time for hand-down is deemed to be 10h00 on 29 May 2026.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: _________________
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D J COMBRINK AJ:
INTRODUCTION
[1] On 21 February 2017, the plaintiff – then a 13- year-old Grade 9 learner at
M[…] M[… ] Secondary School – was struck by a motor vehicle while crossing
a road at Orange Farm on her way to school. She sustained a head injury with
intracranial haemorrhage, facial lacerations, and a soft tissue injury to her
right knee. She was admitted to Chris Hani Baragwaneth Academic Hospital
from 21 to 23 February 2017.
[2] On 18 November 2025, Kilian AJ granted default judgment holding the
defendant 100% liable for the plaintiff's proven or agreed damages and the
quantum was postponed sine die . The plaintiff is before the court on an
unopposed basis, the defendant having failed to defend the matter. At the
outset the plaintiff moved an application that the evidence be received in
terms of rule 38(2) of the Uniform rules of court. This judgment only deals with
the plaintiff's claim for loss of earnings, as the defendant has to date not
conceded the seriousness of the plaintiff’s injuries.
[3] The plaintiff was born on 12 November 2003. She holds a BA degree that she
obtained at the University of Johannesburg, in 2023 and an Honours degree
obtained at the same institution in 2024, both in Public Management and
Governance. She is currently employed as an Administrator/Accounts Clerk at
DNR Auto and Roadside at R6 500 per month gross (R78 000 per annum).
EXPERT EVIDENCE
[4] Dr Okoli, a Neurosurgeon, classified the head injury as a moderate traumatic
brain injury (TBI), based on a GCS of from 12/15 to 14/15, and a CT Brain
confirmed subarachnoid haemorrhage. He assigned a whole- person
impairment of 24% to the plaintiff.
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[5] On clinical examination Dr Okoli found the plaintiff well -orientated in all
spheres; general knowledge and mentation normal; no speech disorder; mood
stable and appropriate. He noted that she completed matric (2020) and her
BA and Honours degrees without failing any grade or year. He noted that t he
plaintiff’s employer's finance manager independently confirmed in writing that
the plaintiff struggles to retain instructions and processes
[6] Ms Bokaba, a clinical phycologist, states that the plaintiff’s neuropsychological
performance ranged between above average and below average with verbal
memory, visual memory and motor peed testing on the low average while only
composite memory fell on the below average range, suggestive of moderate
deficits in this area. The DASS- 21 self-report scores placed depression (38),
anxiety (32) and stress (30) all in the 'extremely severe' category; the PCL- 5
score (74) indicated severe PTSD symptomatology. Ms Bokaba diagnosed
mood dysregulation, PTSD, depression and anxiety and recommended 20
psychotherapy sessions. Ms Bokaba expressed the opinion that the plaintiff’s
involvement with accident has resulted in her psychological functioning, which
is considered to be related to emotional trauma of the event, physical and
cognitive concerns, as well as regular pain.
[7] The Court attributes limited weight to the self -report severity scores as direct
measures of functional capacity, noting that the plaintiff has completed t wo
tertiary qualifications post-accident, manages her daily life independently, and
is in full-time employment. The Court accepts, however, that the accident has
left the plaintiff with residual cognitive vulnerability, particularly in composite
memory and attention, corroborated by the employer.
[8] Mr Mthimkhulu , an Educational Psychologist, further assessed the plaintiff .
His assessment placed her Full Scale IQ in the Low Average range, Verbal
His assessment placed her Full Scale IQ in the Low Average range, Verbal
Comprehension in the Average range, and Perceptual Reasoning, Working
Memory and Processing Speed in the Low Average range. He attributed
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these results to the TBI which has disrupted key cognitive functions essential
to academic functioning.
[9] Mr Mthimkhulu opined that Ms M […] currently has an Honours degree and
wishes to study further; her Honours average of 64% falls 1% below the 65%
Masters entry threshold; this shortfall is attributable to the effects of the
accident; and if admitted and funded, the plaintiff is likely to complete a two -
year Masters programme with a one- year delay due to the accident . He
opines that the overall delay is likely to be two years.
[10] The Court accepts the substance of this evidence. The plaintiff has already
demonstrated remarkable academic resilience post -accident: passing matric,
a BA degree and an Honours degree without failure. The Court finds that, on
a balance of probabilities, the plaintiff would in any event have proceeded to
obtain a Masters degree (NQF 9), both in the pre- morbid and post -morbid
scenarios. The material consequence of the accident is not the prevention of
that qualification, but a one- year delay in obtaining it, and a modestly
heightened risk of career disruption throughout her working life.
[11] The Occupational Therapist opined that the plaintiff's neurocognitive
challenges significantly reduced her competitiveness for promotion and
managerial roles. The plaintiff retains the competency for light to low medium
duties with reasonable accommodation. The physical demands of the
plaintiff’s job as an admin clerk fall within sedentary duties.
[12] Mrs Fakir , the Industrial Psychologist assessed the plaintiff and was of the
opinion that the plaintiff will most likely continue to work with only an Honours
qualification, based on Mr Mthimkulu’s findings. In the premorbid scenario he
opines that the plaintiff, with a Masters degree, would have reached a career
ceiling at the Paterson D3 level. With only an Honours degree her post morbid
career ceiling would be the Patterson C3 earning level. Her revised
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instructions, which form the basis of the new actuarial certificate, treat both
the pre- morbid and post -morbid scenarios as reaching a Masters degree
(NQF 9) and ultimately the same Paterson D3 career ceiling (R1 515 000 per
annum at peak). [017-187/188/192] The single material difference between
the two scenarios is a one- year delay in the post -morbid scenario: Masters
completion in April 2029 rather than April 2028.
[13] Mrs Fakir concluded that while no past loss of earnings was suffered in the
conventional sense (the plaintiff was a scholar at the time of the accident and
commenced earning in December 2023 in both scenarios), she has suffered
loss of her functional and educational abilities.
[14] Mr Sauer prepared an actuarial calculation based on the opinion of Mr Fakir
and a revised actuarial certificate dated 27 February 2026 reflecting the
equalised Masters scenario with a one- year delay. The latter calculation was
obtained after debating the issues with counsel and at the request of the
Court.
[15] The revised actuarial outputs are:-
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Head Pre-morbid Post-morbid Loss
Past earnings R182 545 R182 545 –
Contingency deduction
(past)
5% → −R9 127 25% → −R45 636 –
Past loss of earnings R173 418 R136 909 R36 509
Future earnings (before
contingency)
R18 247 753 R17 506 920 –
Contingency deduction
(future)
30% → −R5 474 326 35% → −R6 127 422 –
Future loss of earnings R12 773 427 R11 379 498 R1 393 929
Total loss of earnings
R1 430 438
Minus RAF cap effect
R0
Total after RAF cap
R1 430 438
APPLICABLE LEGAL PRINCIPLES
[16] Loss of earning capacity is a patrimonial head of damage. The court must
determine the difference, properly capitalised, between what the plaintiff
would have earned in her pre- morbid working life and what she will now earn.
In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) paragraph [8] it was
stated as follows:
“[8] It is trite that a person is entitled to be compensated to the extent that the
person's patrimony has been diminished in consequence of another's
negligence. Such damages include loss of future earning capacity (see for
example President Insurance Co Ltd v Mathews). The calculation of the
quantum of a future amount, such as loss of earning capacity, is not, as I have
already indicated, a matter of exact mathematical calculation. By its nature,
such an enquiry is speculative, and a court can therefore only make an
estimate of the present value of the loss that is often a very rough estimate
(see, for example, Southern Insurance Association Ltd v Bailey NO). The
court necessarily exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity and has a large discretion to award
what it considers right. Courts have adopted the approach that, in order to
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assist in such a calculation, an actuarial computation is a useful basis for
establishing the quantum of damages. Even then, the trial Court has a wide
discretion to award what it believes is just (see, for example, the Bailey case
and Van der Plaats v South African Mutual Fire and General Insurance Co
Ltd).”
[17] Actuarial figures provide an important guide, but the court exercises a broad
discretion to achieve a fair and reasonable result that is just ( : Southern
Insurance Association v Bailey NO 1984 (1) SA 98 (A))
[18] Where a pre-morbid scenario is sufficiently well -founded and the post -morbid
scenario involves the same ultimate qualification and ceiling but with a
measurable delay and increased vulnerability, the court may properly
compensate for both the time- value of delayed earnings and the enhanced
contingency of career disruption.
[19] Contingencies must be applied fairly and proportionately to both income
streams. A higher post -morbid contingency is justified where the evidence
establishes genuine increased employment vulnerability.
[20] Contingencies are the hazards of life that normally beset the lives and
circumstances of ordinary people, and should therefore, by its very nature, be
a process of subjective impression or estimation rather than objective
calculation.
[21] In Goodall v President Insurance Co Ltd 1978(1) SA 389(W) at 392H-
393A the court stated:
"In the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or science of foretelling
the future, so confidently practiced by ancient prophets and soothsayers, and
by authors of a certain type of almanac, is not numbered among the
qualifications for judicial office.”
[22] The determination of appropriate contingencies remains the court’s
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prerogative.
EVALUATION
[23] The Court's threshold finding, which gives effect to the instruction underlying
the revised actuarial certificate, is that the plaintiff would in all probability have
obtained a Master's degree (NQF 9) whether or not the accident occurred.
The reasons are:-
[23.1] The plaintiff has already demonstrated sustained academic resilience
post-accident: she passed matric without failure (2020), completed a
BA degree without failure (2023), and completed an Honours degree
(2024), all without repeating a year. This trajectory is the most reliable
indicator of her capacity for further study.
[23.2] The educational psychologist on who’s finding the industrial
psychologist relied, expressly opine that the plaintiff aspires to and is
capable of completing a Masters degree.
[23.3] The Court accepts Mr Mthimkhulu's opinion that her failure to meet the
65% threshold for Masters entry (she achieved 64%) is probably
attributable to the effects of the accident than to inherent academic
ceiling. One percent is a narrow margin that could plausibly have been
eliminated but for the cognitive and attentional sequelae of the TBI.
[24] In the pre-morbid scenario, the plaintiff would have completed her Masters in
April 2028 .In the post -morbid scenario she will most likely complete it one
year later, in April 2029. The one-year delay reflects the cumulative effect of
the accident on academic pace: the inability to meet the Master s entry
threshold first time; and the two -year Masters programme with one year's
additional delay as a consequence.
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[25] This delay is a concrete, quantifiable loss , which is calculated for the revised
calculation.
[26] The Court having considered the sequalae of the accident is of the view that
that a 2 0-percentage differential between the pre- morbid and post -morbid
future contingencies ( 25% and 4 5% respectively) is fair and appropriate. The
factors supporting the higher post-morbid contingency include:
[26.1] The employer's independent written confirmation of attention and
retention difficulties, even after repeated exposure to tasks.
[26.2] Below-average composite memory on objective neuropsychological
testing.
[26.3] Confirmed PTSD, depression and anxiety symptomatology that, if
untreated, may affect work motivation and productivity.
[26.4] Reasonable accommodation already in place at current employment
which include reduced workload and verification process (works under
supervision) and which has suppressed salary progression and which
may not be readily available with a future employer if she moves to a
Masters-level position.
[26.5] The OT's finding that the plaintiff is a 'vulnerable candidate and
unequal competitor' in the open labour market relative to her non-
injured counterpart, notwithstanding that her physical work competency
speed exceeds the 87.5% minimum.
[27] The past earnings (pre and post) are identical (R182 545), because in both,
the plaintiff commenced earning R78 000 per annum from December 2023 as
an administrator while completing her Honours. The past loss of R36 509
arises entirely from the differential in past contingency rates: 5% pre- morbid
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versus 25% post -morbid. The 25% post -morbid past contingency reflects the
heightened possibility that, during the past period, the plaintiff may have
experienced periods of reduced earnings, sick leave, or reduced productivity
attributable to her injuries and their psychological sequelae. The Court
accepts this differential as reasonable on the evidence.
CONTINGENCIES AND CALCULATION
[28] The Court adopts the actuarial certificate of Mr Sauer dated 27 February 2026
as the appropriate quantification vehicle, subject to the findings at paragraphs
21 to 26 above and the contingencies in paragraph 27. The figures are:-
Item Amount (R)
Past loss of earning capacity R36 509
Future loss of earning capacity R3 321346.35
Total loss of earnings R3 357 855.35
TOTAL AWARD – LOSS OF EARNING CAPACITY R3 357 855.35
ORDER
[29] In the result the Court grants the order attached hereto.
_______________________________
D J COMBRINK
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DATE OF HEARING: 27 February 2026
DATE OF JUDGMENT: 29 May 2026
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APPEARANCES:
On behalf of plaintiff: Advocate I Nwakodo
On behalf of defendant: No appearance