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)
Not Reportable
Case No: 15613/2021
In the matter between:
CLAIRE CAWOOD N.O. obo Plaintiff
O[...] M[...]
and
THE ROAD ACCIDENT FUND Defendant
Coram: MGENGWANA, AJ
Heard on: 19 August 2026
Delivered on: 9 September 2026
Summary: Delict - Quantum of damages - Future medical and hospital expenses -
Past and future loss of earnings - Applicable contingencies - Road Accident Fund
Act 56 of 1996 as amended.
ORDER
1. The Plaintiff is ordered to file with this Court a fresh actuary’s report with
calculations based on the first report of Ms. Tryfonso -Naidoo, dated 14
December 2022, within five days of the date of this order.
2. Both parties are required to file their respective notes dealing with the
appropriate contingencies that should be applied to the actuary’s calculations
within two days of the filing of the actuary’s report.
3. Costs are to stand over for later determination.
JUDGMENT
MGENGWANA, AJ
Introduction
[1] The Plaintiff instituted an action against the Defendant for delictual damages
emanating from a motor vehicle accident that took place on 12 May 2016 at 17 th
Street, Strand, Western Cape. The Defendant has already conceded 80% of the
merits in favour of the Plaintiff.
[2] The Plaintiff’s claim for general damages has been settled. The only heads of
damage that this Court has been called upon to adjudicate are future hospital and
medical expenses together with future loss of earnings.
[3] Before the leading of evidence, the Plaintiff, through her counsel, made an
application in terms of Rule 38(2) of the Uniform Rules of Court, wherein she applied
for leave to have the evidence of her expert witnesses given on affidavit. This
application was not opposed by the attorney for Defendant (Ms. Thomas).
[4] As it would save costs and court time, the Court exercised its discretion in
favour of granting the Rule 38(2) application, permitting the evidence of the following
expert witnesses, whose reports are relevant to the determination of future loss of
earnings, to be led by way of affidavits:
4.1 Professor Anthony Figaji, a Neurosurgeon.
4.2 Ms. Elspeth Burke, a Clinical Psychologist.
4.3 Ms. Cornelia Liebentritt, an Occupational Therapist.
4.4 Dr. Larissa Panieri-Peter, a Psychiatrist.
Their affidavits have been filed, and they have confirmed the contents of their
respective reports.
[5] Having dealt with the preliminary issues, the Court then proceeds to deal with
issues relating to the determination of the appropriate amount to be awarded to the
Plaintiff for future loss of earnings. This exercise will also encapsulate the
determination of the contingencies to be applied therein.
Injuries sustained
[6] As a result of the accident, O[...] M[...], who is currently 22 years old but was
12 years old at the time of the accident, sustained the following injuries:
(a) Haematoma to the forehead;
(b) An injury to the right hip;
(c) Abrasions to the right and left knee;
(d) Abrasions over the right flank and hip region;
(e) Swelling in both eyes;
(f) Had a headache and was drowsy;
(g) Had a Glasgow Coma Scale (GCS) score of 15/15; and
(h) Had nausea and was vomiting.
[7] A CT scan of the head done more than six months after the date of the
accident revealed the following:
(a) Linear fracture of the right frontal bone, crossing the midline, traversing
the roof of the left orbit, extending into the zygomatic bone;
(b) Extradural haemorrhage in the right frontal area with maximal
depth 1.35cm;
(c) Subdural blood on the falx and tentorium;
(d) Mild midline shift to the left, less than 5mm.
In a nutshell, O[...] M[...] sustained a serious traumatic brain injury with long term
consequences from the accident in question.
Sequelae of the injuries
[8] The sequelae of the injuries sustained by O[...] are as follows:
(a) He developed post traumatic epilepsy approximately two years after the
accident.
(b) He dropped out of school as a result of the epilepsy.
(c) He suffers from regular headaches.
(d) He has no recollection of the accident.
(e) He is forgetful.
(f) He has personality and behavioral changes, that is, he is easily irritable
and short tempered.
(g) He also suffers from depression.
Evidence led in court
[9] The only witness to give evidence in court was Ms. Tryfonos -Naidoo, an
Industrial Psychologist. She testified that she finalized an addendum report on 15
June 2026 after having read an Educational Psychologist’s report submitted on
behalf of the Defendant. The author of that report was Ms. M. Ndlovu (Ms. Ndlovu),
who opined that O[...] was most likely functioning within the average range of
intellectual capacity pre -morbidly. Ms. Ndlovu further opined that O[...] would have
been able to qualify for NQF level 4 with a diploma endorsement and this would have
allowed him to pursue post matric training at an institution of his choice had the
accident not occurred.
[10] Based on Ms. Ndlovu’s opinion, Ms. Tryfonos -Naidoo postulated in her
addendum report that O[...] would have entered the labour market as a newly
qualified graduate in 2027, earning about R117 000 per annum (Lower Quartile
earnings). She postulated further that O[...] would, with the acquisition of further skills
and experience, have progressed to a skilled occupational level with greater
earnings. His earnings would have increased in a straight line, peaking at R638 000
in 2049, at which stage his career would likely have plateaued between the ages of
45 to 50 years. At that point, he would have enjoyed annual earnings increases in
line with normal inflation until his retirement at the age of 65 years.
[11] Ms. Tryfonos -Naidoo had previously stated that pre -morbidly, O[...] would
have entered the labour market as a trainee or casual worker in 2023, earning an
amount of R43 700 per annum (Median, Unskilled) which would increase in a
straight line to R131 550 per annum (Midpoint between Median and Upper Quartile,
Semi-Skilled) in 2049. She stated further that O[...]’s career would have plateaued
between the ages of 45 and 50 years, where he would have continued to benefit
from annual increases in line with normal inflationary increases until his retirement at
the age of 65 years.
[12] There is, therefore, a huge gap between the two scenarios. Ms. Tryfonos -
Naidoo explained that this gap was brought about by what was said in the
Educational Psychologist’s report commissioned by the Defendant. This report was
made available to her by her instructing attorneys after they received it from the
Defendant’s attorneys.
[13] After leading their sole witness, the Plaintiff’s counsel closed his case. Ms.
Thomas did not lead any witnesses despite appointing three medico-legal experts.
Submissions made on behalf of the parties
[14] Despite the above, Ms. Thomas posited that the only reason Ms. Tryfonos -
Naidoo changed her initial opinion was because of Ms. Ndlovu’s report which did not
form part of the evidence as no Rule 38(2) application was motioned in respect
thereof. She submitted further that Ms. Ndlovu was not presented to this Court to
give evidence. Therefore, based on the above, this Court was not bound by what
appeared in Ms. Tryfonos-Naidoo’s addendum report.
[15] In support of her submissions, Ms. Thomas referred this Court to the
judgment of the Supreme Court of Appeal in Price Waterhouse Coopers Inc v
National Potato Co -operative Ltd.1 In that matter, Wallis JA stated that the facts on
which expert witnesses base their opinions must be found to exist; the more an
expert relies on facts that are not in evidence, the less weight their opinion will carry
and the court will not be bound by their opinion.2
[16] In response to the above, counsel for the Plaintiff argued that the submissions
of Ms. Thomas are devoid of any merit for two reasons:
(a) The function of the Industrial Psychologist is to assist the court in the
determination of reasonable compensation to be awarded for loss of
earnings and, in this regard, she is obliged to take into account and
defer to all relevant expert reports, including the Educational
Psychologist.
(b) The fact that the Educational Psychologist’s report was not submitted
into evidence did not prohibit the Industrial Psychologist, once it came
to hand, from relying on it to revisit her original career and earnings
postulation.
It has been noted that counsel for the Plaintiff does not rely on any authority for his
submissions.
The law
1 Price Waterhouse Coopers Inc and others v National Potato Co-operative Ltd and another [2015] 2 All SA
403 (SCA).
2 Ibid para 99.
[17] In Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd,3 Majiedt JA found as
follows:
“Lastly, the expert evidence lacked any reasoning. An expert’s opinion must be
underpinned by proper reasoning in order for a court to assess the cogency of that
opinion. Absent any reasoning, the opinion is inadmissible since it cannot be said to
be an expert opinion.” (Footnotes omitted)
[18] In BEE v Road Accident Fund ,4 Seriti JA said that expert witnesses ‘must
speak in detail to the facts upon which their opinions and conclusions are based.’
[19] Njokweni AJ, as he then was, found as follows in Booi v Passenger Rail
Agency of South Africa in his unreported judgment that was delivered on 26 May
2026.5
[20] Expert witnesses are witnesses who are allowed to speak as to their opinion,
but they are not the judges of the fact in relation to which they express an opinion;
the Court... is the judge of the fact... In cases of this sort, it is of the greatest
importance that the value of the opinion should be capable of being tested. Unless
the expert witness states the grounds upon which he bases his opinion, it is not
possible to test its correctness, to form a proper judgment upon it.
[21] It is trite that an expert witness is required to assist the Court and not to usurp
the Court's function. Expert witnesses are required to lay a factual basis for their
conclusions and explain their reasoning to the Court. The Court must satisfy itself as
to the correctness of the expert’s reasoning. In Masstores (Pty) Ltd v Pick ‘n Pay
Retailers (Pty) Ltd , this Court said lastly that the expert evidence lacked any
reasoning. An expert’s opinion must be underpinned by proper reasoning for a Court
to assess the cogency of that opinion. Absent any reasoning, the opinion is
inadmissible.
3 Masstores (pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd and Another 2016 (2) SA 586 (SCA) para 15.
4 BEE v Road Accident Fund 2018 (4) SA 366 (SCA) para 28.
4 BEE v Road Accident Fund 2018 (4) SA 366 (SCA) para 28.
5 Booi v Passenger Rail Agency of South Africa (8855/2017) [2026] ZAWCHC (26 May 2026) (Unreported
judgment) paras 23-25.
[22] The Defendant closed its case without calling any witnesses (lay or experts),
and the Defendant's expert reports were not admitted under Rule 38(2). The Court
did not have the opportunity to test the factual basis of the disagreements in the joint
minutes by the Defendant’s experts. So, the Defendant’s opinions on the disputed
issues are not before the Court. Accordingly, the Court will consider only the
Plaintiff's evidence, his experts' evidence, and the areas of agreement in the joint
expert minutes. Thus, the Defendant’s experts’ disagreements with the joint minutes
are declared pro non scripto.’ (Footnotes omitted)
Application of the facts to the law
[23] From this Court’s reading of the submissions made by Ms. Thomas, her
attack is two pronged. Firstly, she submits that Ms. Tryfonos -Naidoo’s addendum
report has no factual foundation and the only reason for its existence is the report of
Ms. Ndlovu. Secondly, as no Rule 38(2) application was made in respect of Ms.
Ndlovu’s report and Ms. Ndlovu was not called to give evidence in court, Ms.
Tryfonos-Naidoo’s report should be rejected in so far as it relies on facts that are
currently not before court. The Pla intiff’s counsel’s response to the above has
already been stated.
[24] The question that this Court needs to answer is whether the addendum report
of Ms. Tryfonos-Naidoo is underpinned by proper reasoning. This question can only
be answered if one revisits her addendum report. At page 11 of her report, Ms.
Tryfonos-Naidoo states the following under the subheading “Discussion and
Opinion”:
‘In my initial report it was postulated that Mr. M[...] would have completed Grade 12
around the age of 18 years, have then eventually entered the labour market on a
basic skilled level and over time have been able to progress to a semi -skilled
occupational level within the non -corporate sector where his career and earnings
were likely to plateau. Following consideration of the Educational Psychologist’s
were likely to plateau. Following consideration of the Educational Psychologist’s
findings, it is recommended that my initial pre -morbid career scenario be revised to
reflect a more favourable educational and vocational outcome, as supported by
available expert evidence.’
[25] It is clear from the above that the sole reason for the compilation of Ms.
Tryfonos-Naidoo’s addendum report was her receipt and perusal of a single report
by Ms. Ndlovu. However, Ms. Tryfonos -Naidoo, who had compiled her first report
while armed with the medico -legal reports of Ms. Burke and Ms. Coetzee, various
school reports and collateral information from O[...]’s teacher, omits to give
substantive reasons for why she was persuaded to change the substantive part of
her initial report by this particular report of Ms. Ndlovu. In my opinion, this omission is
fatal as it leads the Court to conclude that her addendum report lacks the foundation
of proper reasoning. Accordingly, the opinion contained in the addendum report falls
to be disregarded by this Court.
[26] This Court also agree with Ms. Thomas’ submission that Ms. Tryfonos -
Naidoo’s addendum report should be rejected because it relied heavily on Ms.
Ndlovu’s report, which has not been properly placed before this Court as no Uniform
Rule 38(2) application was made in respect thereof. Moreover, Ms. Ndlovu was
never called to give evidence in court.
ORDER
[27] In the result, I grant the following order:
[27.1] The Plaintiff is ordered to file with this Court a fresh actuary’s report
with calculations based on the first report of M.s Tryfonso -Naidoo,
dated 14 December 2022, within five days of the date of this Order.
[27.2] Both parties are required to file their respective notes dealing with the
appropriate contingencies that should be applied to the actuary’s
calculations within two days of the filing of the actuary’s report.
[27.3] Costs are to stand over for later determination.
________________________
T.J Mgengwana
Acting Judge of the High Court
APPEARANCES
For the Plaintiff: H.G McLachlan
Instructed by: Kruger & Co.
For the Defendant: C. Thomas
Instructed by: State Attorney