Kriel NO obo Minor Child v Road Accident Fund (12291/2020) [2024] ZAGPJHC 852 (27 August 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 852 | Noteup | LawCite sino index ## Kriel NO obo Minor Child v Road Accident Fund (12291/2020) [2024] ZAGPJHC 852 (27 August 2024) Kriel NO obo Minor Child v Road Accident Fund (12291/2020) [2024] ZAGPJHC 852 (27 August 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_852.html sino date 27 August 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy SAFLII Note: A nnexure images are not available in html and rtf versions, please refer to the PDF attachment for images. IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG LOCAL DIVISION, JOHANNESBURG) 1. REPORTABLE:  NO 2. OF INTEREST TO OTHER JUDGES: NO 3. REVISED. CASE NO: 12291/2020 In the matter between:- ADVOCATE HERMAN KRIEL N.O. obo Minor Child Plaintiff and ROAD ACCIDENT FUND Defendant SUMMARY: Quantum of Damages – Pedestrian involved in motor vehicle accident – minor doli incapax- merits conceded – future medical expenses – future loss of earnings – contingency allowances – general damages postponed sine die. JUDGMENT ALLEN AJ INTRODUCTION [1]  The plaintiff is Advocate Herman Kriel N.O. an advocate of this Court and duly appointed in his representative capacity as Curator ad Litem on 30 May 2023 for the minor daughter KM. [2]  The defendant is the Road Accident Fund a statutory body duly incorporated in terms of the provisions of Section 2 of the Road Accident Fund Act, Act 56 of 1996 as amended and empowered to deal with this claim and obliged to compensate the minor in respect of loss or damage suffered by her as a result of bodily injuries caused by a motor vehicle and thereby within the jurisdiction of this Court. [3]  In this action plaintiff claims damages from the defendant in a representative capacity arising from injuries sustained by the minor when she was injured on 3 March 2018. The minor child was injured when she was crossing Joubert Road, Vanderbijlpark when the driver of the insured vehicle traveling at a high speed overtook a stationary yellow Toyota Venture vehicle and collided with the minor child on the road surface, but on the insured vehicle’s incorrect side of the road in close proximity to the pavement on the opposite side of the road. [4]  The minor child sustained a head injury, bruises over her forehead, a mid-shaft humerus fracture on the right and a radial nerve palsy on the right. [5]  The minor was born on 27 September 2009 and was 8 years old when the accident occurred. She is now 14 years and 11 months old. The minor child was rebuttably presumed to be doli incapax at the time of the accident [1] . [6]  The defendant conceded liability for 100% (one hundred percent) of the plaintiff’s proven damages or agreed damages. The actual merits are thereby resolved. [7]  The plaintiff sued for past medical and hospital expenses, future medical and hospital expenses, future loss of earnings/earning potential and general damages in the total amount of R8 020 000.00 as a result of the injuries sustained. Plaintiff at the trial abandoned the claim for past medical and hospital expenses. [8]  The plaintiff at the commencement of the hearing brought an application in terms of Rule 38(2) of the Uniform Rules of Court to present his evidence and that of his collateral and expert witnesses by way of affidavit as well as to admit certain evidence set out more in full in the plaintiff’s application. The defendant at the commencement of the hearing gave notice to oppose this application, but did not file any opposing papers or heads of argument and elected to argue from the bar only. The defendant conceded that he should have filed papers in opposing plaintiff’s application. The defendant also conceded that there were no statements from the defence that could be of assistance to the court. [9]  The defendant also argued that no expert reports were filed and confirmed the only reports before this court are those of the plaintiff. The defendant further argued that the plaintiff’s expert reports were 2020 reports and should not be allowed. The evidence before court proved the contrary such as expert affidavits filed in 2023 confirming the contents of the 2020 reports, an addendum report filed by the educational psychologist Me A Mattheus dated 16 February 2023 and an updated actuarial report of plaintiff filed dated 8 July 2024. [10]  Premised on the application before me and arguments from both parties the following order was made: “ [10.1]  The applicant is granted leave to present his evidence and that of his collateral and expert witnesses by way of affidavit in terms of the provisions of Rule 38(2); [10.2]  The court admits into evidence in terms of the provisions of Section 3(1)(c) of the Law of Evidence Amendment Act, Act 45 of 1988 the following: [10.2.1]  The minor child’s hospital and clinical records; [10.2.2]  The minor child’s school reports; 10.2.3]  The collateral evidence provided to the applicant’s expert witnesses; [10.2.4]  The applicant’s expert reports containing the reasons and the opinions expressed therein. [10.3]  Costs of the application”. [11]  No oral evidence was adduced at the trial. [12]  No joint practice note was filed. The plaintiff filed a practice note and heads of argument whilst the defendant elected not to file heads of argument. [13]  The plaintiff filed expert reports of the following experts: [13.1]  Dr Kruger – Neurosurgeon [13.2]  Dr Roussouw – Ear, Nose and Throat Specialist [13.3]  Dr Berkowitz – Plastic and Reconstructive Surgeon [13.4]  Me Mattheus – Educational Psychologist [13.5]  Mr Jooste – Industrial Psychologist [13.6]  Dr Longano – Psychiatrist [13.7]  Me Morland – Occupational Therapist [13.8]  Dr Watts – Clinical Psychologist [13.9]  Mr Immermann – Actuary [13.10]  Dr Van Den Bout – Orthopaedic Surgeon [14]  The defendant did not file any expert reports. [15]  No joint minutes were filed. THE ISSUES [16]  The issues which require determination are the quantum of the plaintiff’s claim for future medical, hospital and related expenses, future loss of earnings, general damages and the contingency deduction applicable thereto. THE EVIDENCE The plaintiff’s expert reports : Dr Kruger – Neurosurgeon [17]  On 23 September 2020, two years and six months after the accident, Dr Kruger examined the minor child at the time 11 years old. The purpose of this examination was to evaluate the severity of the injuries sustained by the minor child on 3 March 2018. The report was compiled from the information obtained from the primary caregiver of the minor, on the history of the accident, accident report by SAPS, hospital records and a clinical evaluation. [18]  He opined the minor child was unconscious immediately after the accident and it is unclear for how long she remained unconscious. The minor child had no recollection of the accident and according to the primary caregiver she had a dense phase of post-traumatic amnesia of 5 days. Five days after the accident at the Chris Hani Baragwanath Hospital, the minor child recognized her surroundings and the people around her. Dr Kruger in his report, paragraph 3.1, also recorded the following: “The patient has no retro grade amnesia”. [19]  He further opined the minor child was stabilized at the scene of the accident by paramedics and then taken in an ambulance to Sebokeng Hospital where the Glasgow Coma Scale (GCS) was recorded as 11/15. At some stage the minor was intubated and mechanically ventilated and also admitted to the Intensive Care Unit. [20]  On 7 March 2018 the minor was transferred to Chris Hani Baragwanath Hospital and on admission admitted to the Intensive Care Unit and extubated the following day. The GCS was recorded as 15/15 which remained constant “throughout her ordeal”. The minor was transferred back to Sebokeng Hospital on 11 March 2018 and discharged on 17 March 2018. From the clinical records available of Chris Hani Baragwanath Hospital mention was made of mildly severe brain oedema (brain swellings) (revealed through a CT-scan of the brain). The minor sustained the following injuries in the accident: head injury with loss of consciousness, mid shaft humerus fracture on right hand side, radial nerve palsy on right hand side and bruises over the forehead. The head injury sustained in the accident was treated conservatively and the bruises to the forehead were cleaned and bandaged. The right mid shaft humerus fracture was treated by way of stabilization in a plaster of paris cast in position for two weeks. The radial nerve palsy on the right-hand side was treated by way of rehabilitation namely physiotherapy and occupational therapy. The radial nerve palsy on the right-hand side has recovered well with no signs of weakness or sensory loss in the distribution of the radial nerve. Personal history of the minor [21]  The minor child stays with her primary caregiver in an informal house in Aeroton on the East Rand of Gauteng. The caregiver is currently unemployed. The minor child has never met her farther. The minor child has two adult brothers and another 19-year-old sister and all three siblings of the minor are currently unemployed. Educational background [22]  At the time of the accident the minor was in Grade 3 at Jabulani Thabang Primary School in Aeroton. The minor stayed off school for 3 weeks after the accident and completed Grade 3 in the same year as the accident. According to the primary caregiver of the minor she is currently struggling academically at school. The minor struggles with loss of short-term memory and regularly forgets newly learned information. At the time of the accident the minor was right-handed, but currently writes with her left-hand – this is secondary to a radial nerve injury sustained to the right-hand in the accident. [23]  At the time of the visit the minor complained of tension headaches three times a week which were aggravated by psychological stress and hot weather, pain in the right upper arm, but with no weakness or loss of sensation in the right arm/right wrist/right hand/right fingers. The minor suffers from cognitive mental problems with a loss of short-term memory, regularly forgets newly learned information, regularly forgets to do her homework and struggles academically at school. The minor had psychological/psychiatric complaints as a result of the accident. The minor had no complaints of neck pain, lumbar back ache, radial nerves, long tracked symptoms and epilepsy. [24]  In paragraph 6.2.3.4 Dr Kruger opined “from the clinical records available for my evaluation, the history, the symptoms and signs no suspicion of a focal brain injury. From the clinical records available for my evaluation, the history, the symptoms and signs no suspicion of any secondary event that took place that could have aggravated the initial head injury sustained in the accident.” [25]  In paragraph 6.2.3.7 Dr Kruger opined that the minor’s cognitive mental problems and psychological/psychiatric complaints are “signs of a severe diffuse axonal brain injury, as evidenced by the fact that the minor lost consciousness after the accident, had an initial Glasgow Coma Scale of 11/15 and had a dense phase of post-traumatic amnesia for 5 days”. [26]  Dr Kruger deferred to the opinions of a clinical psychologist/ neuropsychologist regarding the clinical extent of the brain injury and complaints. He also deferred to the opinion of an educational psychologist regarding the educational problems at school and a clinical psychologist/psychiatrist regarding the psychological/psychiatric complaints of the minor. [27]  In paragraph 6.2.4.1 Dr Kruger opined that on a personal level the minor is currently independent with activity of daily living with normal mobility, but has stopped taking part in sport as a result of the accident. Neurological examination [28]  Dr Kruger did a neurological examination which resulted in the following: short, medium and long-term memory – normal, concentration – normal, language ability – normal, mathematical ability – normal, general knowledge – normal, abstract thought – normal. He also recorded that the cranial nerves, cerebellum, gait and tone were all normal as was her strength, reflexes and sensory examination as well as the nerve tension tests. [29]  In paragraph 11.12 he opined that the academic performance of the minor has deteriorated since the accident. [30]  Dr Kruger was not in a position to give an opinion regarding the clinical extent of the severe diffused axonal brain injury and the current complaints of cognitive mental problems and deferred to the opinion of a clinical psychologist/ neuropsychologist. He also was not in a position to give an opinion regarding the current educational problems and deferred to the opinion of an educational psychologist. He also opined that the minor has an 8% chance of developing epilepsy in future. [31]  He was also not in a position to give an opinion regarding the humerus fracture sustained on the right-hand side and he deferred to the opinion of an orthopaedic surgeon. [32]  He was further not in a position to give an opinion regarding the previous radial nerve palsy sustained in the accident and deferred to an opinion of a neurologist. [33]  Dr Kruger also opined that the accident will not influence the minor’s life expectancy but, based on the current complaints of cognitive mental problems will influence her educational future which will influence her ability to work in the open labour market and her retirement age. [34]  Dr Kruger concluded that from a neurosurgical perspective the whole person impairment (WPI) rating (combined) for the minor is 12% and the accident the minor was involved in will not result in a whole person impairment rating of above 30% in his view. By applying the narrative test, the injuries sustained in the accident qualify as serious injuries under the heading: “Severe long term mental or severe long term behavioural disturbance or disorder”. [35]  Dr Kruger’s report stated that the report is valid for a period of two years whereafter an updated report is to be obtained. An updated report was not obtained and he filed an affidavit dated 20 February 2023 confirming this report. [36]  He did not file a RAF 4 Serious Injury Assessment report. Dr Roussouw – Ear, Nose and Throat Specialist [37]  On 15 September 2020, two years and six months after the accident, he assessed the minor for the purpose of compiling a medico-legal report and confirmed the contents of this report dated 17 September 2020 in an affidavit filed dated 20 February 2023. [38]  When he interviewed and examined the minor child the problems at the time were she suffers from headaches, pain in the arm, hearing loss on the right-hand side and visual disturbances. On examination her nose showed a mild deviation of the nasal septum to the left-hand side. Her ears were clinically normal although she did show signs of a hearing loss on the left-hand side. Her arm had pain on the right-hand side. [39]  The minor was sent for an audiogram which showed essentially normal hearing except that she had bi-lateral high tone hearing losses which could be predictive of barro-trauma caused by the head injury. He recommended at least three future ear, nose and throat examinations as well as audiological evaluations. He also opined that she most likely prematurely need a hearing aid in future life and at least one digital hearing aid. Dr Berkowitz – Plastic and Reconstructive Surgeon [40]  Dr Berkowitz assessed the minor child on 19 October 2020, two years and seven months after the accident for the purpose of compiling a medico-legal report and his opinions and reasons are expressed in his report dated 21 October 2020 and confirmed in an affidavit filed dated 21 February 2023. [41]  On examination he noted a minor scare in the center of the forehead, multiple linear post-abrasion scars covering an area of 130mm x 5mm noted on the lateral aspect of the right flank and a post-abrasion scar measuring 40mm x 50mm on the lateral aspect of the proximal third of the right thigh. This scar will benefit from long term treatment with pigment cream with no future medical management and or cost for the other scars. [42]  Dr Berkowitz did complete a RAF4 Serious Injury Assessment Report and in paragraph 5.2 the narrative test of the minor child presents with permanent serious disfigurement and her whole person impairment due to skin disorders equates to 5% whilst his medico-legal report in paragraph 5.1 only recommended pigment cream for the right thigh. Me Mattheus – Educational Psychologist [43]  Me Mattheus assessed the minor child on 14 August 2020, two years and five months after the accident, for the purpose of compiling a medico-legal report dated 22 August 2020 and an addendum medico-legal report dated 16 February 2023. This were confirmed in an affidavit filed dated 8 July 2024. [44]  Me Mattheus received the minor’s school reports for Grade 3 and Grade 4. At the time of the first assessment the minor was in Grade 5. Me Mattheus could not obtain full details of the minor’s birth and early-childhood development and recommended that a copy of her Road to Health Chart is obtained. [45]  She opined regarding the minor’s health that her medical condition at the time of assessment was headaches for which Panado was used as treatment. Test battery [46]  The test battery she utilized was selected with careful consideration of the minor’s individual, cultural and physical background in accordance with her age and present choice of educational level. The Wechsler Intelligence Scale for Children – fifth edition (WIS-C) was administered. [47]  The minor’s general cognitive and intellectual ability (full scale) measured 66 – extremely low range, verbal comprehension index 55 – extremely low range, visual spatial index 75 – border line range, fluid reasoning index 82 – low average range, working memory index 76 – border line range, processing speed index 56 – extremely low range. Pre-accident potential [48]  The minor’s pre-accident potential is deduced from various information and she recorded that “very little objective information has been presented”. Accurate information regarding her mother’s pregnancy, birth and development was not available and her biological father is unknown. Her mother also passed away. [49]  Me Mattheus also recorded that no pre-accident school reports were made available and she had to rely on the information received from the parent/guardian (caregiver). She further reported that: “given the very limited information available, the writer is of the opinion that the minor will most probably have been able to complete grade 12 (NQF level 4) with an endorsement to continue with a higher certificate or diploma. If given the opportunity to attend tertiary education and financial support (e.g. FEDSAS) she would have entered the open labour market with a NQF level 5/6”. Post-accident potential [50]  The educational assessment findings suggest that her cognitive functioning is falling in the extremely low range and that she is “presenting with significant cognitive difficulties” and that her post-accident school reports are evident of a slight decline in academic progress. As she matures and progresses through the grades the full impact of the sequelae of the TBI would become more visible. She opined that the assessment results indicated that the minor is experiencing some emotional difficulties as a result of the trauma of the accident and she recommended psychotherapy and that her behavioral– and her emotional wellbeing be monitored closely. [51]  She further opined that based on the minor’s cognitive profile the minor would struggle to complete her education in a mainstream school and that she should be placed in a vocational school and within this setting she would be able to leave school at the age of 18 years with a NQF level 2 and a vocational skill to make her eligible for placement in sheltered employment. Addendum assessment report [52]  Me Mattheus also filed an addendum assessment report dated 16 February 2023 based on the assessment of 14 August 2020. This report is based on the minor’s school reports received for the period 2016 to 2022. She opined that the post-accident school reports indicated that she was coping with the academic demands although cautious in the interpretation of her academic progress during the national Covid-19 pandemic. [53]  The remainder of the addendum report in essence repeated what was stated in the initial report. Mr Jooste – Industrial Psychologist [54]  Mr Jooste assessed the minor on 30 September 2020, two years and six months after the accident, for the purpose of compiling a medico-legal report also dated 30 September 2020. A further report was filed dated 18 February 2022 based on and confirming his opinion and reasons in his previous report. The objective of this assessment was to evaluate the effects of the accident and its sequelae on the employability and earning capacity of the minor child. The reports were confirmed in an affidavit filed dated 20 February 2023. [55]  During the assessment was present the minor, her legal guardian, Mr Louis Linde and Kevin Jooste, Industrial Psychologists and Ms Chanise Naudé, Registered Psychometrist as well as an interpreter. Her prospects were evaluated by disregarding the accident and injuries sustained and having regard to the accident and injuries sustained. The minor at the date of the assessment was 11 years old. [56]  In paragraph 4.2.2 of the initial report it was recorded that the minors’ mother had a Grade 8 level education and was self-employed as a vendor selling fruits, vegetables and meat in a township close to the house and her legal guardian also has a Grade 8 level education who sells perfume from home and she receives money from family members when she needs it. [57]  The industrial psychologists were furnished with the school reports for Grade 3, Grade 4 and term 1 of Grade 5. They opined that in the interview the minor had reported, ad paragraph 56, “that she enjoys her school and that she does not find it particularly difficult” and that her favourite subjects are mathematics and english. They further opined in paragraph 59 that psychometric testing was not used to assess the minor’s general level of cognitive and psychosocial functioning due to her young age and deferred to the findings of the educational psychologist (Me Mattheus). [58]  In paragraph 65 they opined that the minor appeared to be an intelligent girl who did not speak spontaneously about the accident and did not offer any complaints. When this aspect was canvassed it was revealed that she dislikes speaking about her accident. Pre-accident potential [59]  In paragraph 68 they opined that unfortunately not much is known about the minor’s developmental history due to her mother passing away and her farther not playing a role in her life. The minor was in Grade 3 and doing well at school when the accident in question intervened (Paragraph 69). [60]  In paragraph 70 they recorded that the minor was not raised in the same household as her siblings who are employed as a vendor, assistant to a plumber and her sister is not employed. In paragraph 77 they opined that by taking into consideration the aspects of the other experts that the minor would probably have obtained at least a Grade 12 level of education and matriculated with entrance to a national certificate or a national diploma and as she was too young to have made any specific career decisions consequently the application of the so called “brought brush” approach is recommended. They proposed two (2) scenarios namely scenario 1 Grade 12 with Higher Certificate (NQF level 5) and scenario 2 Grade 12 with Diploma (NQF 6). Post-accident history and potential [61]  In paragraph 119 they opined the concerns raised by the various experts should be read with their opinion that the minor will suffer a future loss of earnings and earning capacity. In their view, ad paragraph 132, the minor is rendered practically unemployable and only found to be suitable for sheltered, sympathetic employment. This is based on her suitability by other reports filed. Dr Longano – Psychiatrist [62]  Dr Longano assessed the minor child on 17 August 2020, two years and six months after the accident, for the purpose of compiling a medico-legal report also dated 17 August 2020. Dr Longano filed an affidavit dated 20 February 2023 confirming under oath this report. At the time of the interview he was furnished with the minor’s hospital records, RAF 1 claim form completed by Sebokeng Hospital, accident report and an affidavit dated 10 May 2018. [63]  He opined that based upon the interview with the minor and her maternal aunt as well as a review of the documentation that the minor was reportedly struck by a vehicle whilst standing on a pavement on a road near her residence which is in contradiction with the other evidence submitted. In addition, she was not taken to Sebokeng Hospital after the accident, but to Levai Mbatha Community Health Centre (not clear how she was taken to the centre) and thereafter transferred to Sebokeng Hospital. [64]  According to the emergency services report related to her transfer her Glasgow Coma Scale was 14/15 and with a Glasgow Coma Scale later of 10/15 (the actual figure is smudged and could be different). A CT-scan of the brain was ordered and showed cerebral oedema. On 8 March 2018 the minor was transferred to Chris Hani Baragwanath Hospital and on arrival her Glasgow Coma Scale was noted as 10+. She was treated and subsequently extubated and her Glasgow Coma Scale improved to 15/15 over the next 2 days (up to 10 March 2018). On 11 March 2018 she was transferred back to Sebokeng Hospital. [65]  The minor denies any memory of the day of the accident, where it happened, what time and what she was doing prior to the accident and only remember being at Sebokeng Hospital prior to her discharge. Her primary caregiver also advised Dr Longano that the minor initially did remember walking on the pavement prior to being struck by the vehicle, but the minor has now become very tense when the accident is mentioned. The primary caregiver also advised that the minor was out of school for approximately 3 months from March to June which does not tally with the school reports which shows a total absence for 2018 of 25 days, 13 days in the second term and 9 days in the first term. [66]  He opined that her current condition was that she experiences a headache about 3 times a week which responds rapidly to paracetamol. Since the accident the minor has been unable to write with the right-hand and she learned to write left-handed and also experiences pain in the right thigh particularly during cold weather. Her sleep was good unless suffering from a headache. On a concentration level the minor states that she has no problem following the teacher, provided she sits in the front row otherwise she cannot hear properly. [67]  The minor further stated that she can see clearly, both on the board and on written or printed material in front of her. The minor complained that her memory is not good and she tends to remember things patchily even after learning them and by the following day she has a limited recollection of what she has learned. [68]  He further opined that he is unable to specify the severity of the head injury with confidence given the fact that she was sedated, intubated and given opioid analgesics and deferred to a relevant expert for such assessment. [69]  There was also no comment on her neurological status in the discharge summary of the Paediatric Intensive Care Unit at Chris Hani Baragwanath Hospital. He further opined that the minor’s injury did no appear to have affected her academic performance in the year of the accident but may have caused some declining performance in the subsequent year. [70]  He further opined that the minor’s performance during the mental state assessment was in his opinion inconsistent with her report of academic performance in 2019 and he was concerned about either a deterioration in her neurological status over time or the appearance of the so called “sleeper effect” due to which her performance will progressively deteriorate over the coming years. He accordingly recommended a formal neuropsychological assessment which assessment should be preceded by a hearing screening and assessment. Me Morland – Occupational Therapist [71]  Me Morland assessed the minor on 20 and 31 August 2020 respectively, two years and six months after the accident, for the purpose of compiling a medico-legal report dated 2 November 2020. She also filed an affidavit dated 27 February 2023 confirming under oath this report. [72]  She opined that tests were done and recorded that the minor’s active and passive concentration span was lower that what it should be. Her eye movements were adequate. With the minor’s postural control it was noted that she was standing with an uneven posture alignment (her right shoulder higher than her left shoulder), adequate muscle tone and was unable to hold the supine flexion posture against resistance. Her ball skills were inadequate to slightly inefficient. Her static balance was in line with her age. Her dynamic balance displayed difficulties that may be linked to neurological damage she sustained in the accident. Her drawing scored below average for her age as well as her coloring. With the EHC during the motor coordination test she scored “below average, within the accepted range for this test”. Her writing was slightly below average for her age. Her maths was also below average for her grade level. [73]  The quick neurological screening test showed a Normal Response of 19. A Normal Response is indicated by a total of 25 or less and is almost always achieved by persons who are not likely to have specific learning difficulties.  A Normal Response score must have no individual tasks scored in the Severely Deficient range. [74]  The minor had two individual tasks that scored within the Severe Discrepancy Range and one sub-task that scored on the Moderate Discrepancy range which support possible neurological damage. The remainder of the tests could be summarized as average for her age. [75]  Me Morland further opined that the minor’s maths and writing are slightly below her grade level and should it become necessary she should be moved to a remedial school at primary school level. She will struggle to obtain a matric certification in a mainstream school. [76]  She further opined that due to the combination of the minor’s cognitive deficits and psychiatric difficulties the minor is limited to work that is structured simplistic routine in nature with some level of supervision and due to her psychiatric difficulties she is also limited to work that is sympathetic in nature. For further comment on her employment prospects she deferred to the industrial psychologist. She recommended occupational therapy and also recommended Kumon maths, a case manager be appointed and a supervisor for her after school career. Dr Watts – Clinical Psychologist [77]  Dr Watts assessed the minor on 20 August 2020 and 3 September 2020, two years and six to seven months after the accident, for the purpose of compiling a medico-legal report. He filed an affidavit dated 28 February 2023 wherein he confirmed this report. [78]  Dr Watts did a neuropsychological assessment. The minor’s inability to speak English fluently and her cultural background were factors which had to be considered when interpreting the assessment findings. The minor’s performance on tasks of attention and concentration arranged from average to impaired which points to fluctuations in attention. Her immediate attention span was average as well as the mental tracking skills. Her ability to visually keep track and to concentrate on more than one piece of information at a time was impaired as was her performance on the oral version of a task of complex visual attention. [79]  A task of eye-hand co-ordination and fine motor dexterity was average with the left hand and impaired with the right hand. The minor’s performance on tasks of visual perception, visuo-motor perceptual integration and judging spatial relations was intact. [80]  The minor’s performance on tasks of verbal learning and memory evidenced mild impairments when non-meaningful material was involved. When dealing with material that was presented in a meaningful manner her performance was average. When she was required to learn and recall non-meaningful information the result was average for a child of her age. Her performance was also average when she was required to recall the material immediately after interference but mildly impaired after a further delay of 20 minutes. The minor’s recall of complex visual material was low average. The minor’s verbal comprehension, expressive speech, reading and writing skills were adequate within the context of the evaluation whilst her arithmetic skills were impaired. [81]  The minor’s estimated intellectual capacity as measured on the Coloured Ravens Progressive Matrices, a non-verbal test of intellectual capacity, fell within the above average range. The minor did not have any executive skill problems at the time of the assessment. [82]  Dr Watts opined that the neuropsychological evaluation of the minor’s higher mental functioning presented constraints due to her inability to speak English fluently and her cultural background. [83]  Dr Watts also opined that the minor will need to be monitored whilst at school in order to ascertain whether or not she “grows into” any further cognitive or behavioral problems. Regarding the minor’s schooling and employment he deferred to the relevant experts. He also recommended neuropsychological rehabilitation and re-assessment. Mr Immermann – Actuary [84]  Mr Immermann, a consulting actuary practicing at GW Jacobson Consulting Actuaries (Pty) Ltd, gave an opinion and reasons expressed in a report dated 12 April 2022 and a further report dated 8 July 2024. He also filed an affidavit   dated 16 July 2024 confirming the reports. In his first report he proposed as follows with a 20% contingency: Basis I certificate level of education- a future loss of R6 637 566.00 for the accident with a 20% contingency deduction with a nett future loss of R5 310 053.00. Basis II diploma level of education- a future loss but for the accident of R8 294 852.00 was proposed with a 20% deduction totaling a nett future loss of R6 635 882.00. [85]  Mr Immermann prepared a further report based on recommendations of the Industrial Psychologist’s report and “performing calculations on this basis should in no way be construed that I certify the likely career paths but for and having regard to the accident to be realistic”. On the assumptions he proposed: Basis I certificate level of education but for the accident R7 929 414.00 with a 20% contingency nett future loss R6 343 531.00. Basis II diploma level of education but for the accident R10 080 428.00 with a 20% contingency nett future loss R8 064 342.00. Dr Van Den Bout – Orthopaedic Surgeon [86]  Dr Van Den Bout examined the minor on 13 August 2020, two years and six months after the accident. He filed a medico-legal report also dated 13 August 2020. He, from the outset, confirmed that the minor passed the narrative test according to points 5.1 and 5.2 of the RAF 4 Serious Injury Assessment report which he also completed. He did not file an affidavit, only a medico-legal report. [87]  He calculated the minor’s impairment for the right clavicle fracture a 3% upper extremity impairment, for the right humerus fracture a 3% upper extremity impairment, in total 6% which translates to a 4% whole person impairment with no apportionment in terms of point 4.11 of the RAF 4 report. [88]  For the facial scarring, although an exception, a rating of 3% whole person impairment with a combined value of 7% whole person impairment was calculated. [89]  The whole person impairment in respect of “the head and brain injuries sustained should be obtained from a neurosurgeon / neurologist” and therefore was not included in his calculation. [90]  In his view the minor therefore did not pass the 30% rule of point number 5 of the RAF 4 report. He opined that the minor passes the narrative test for serious long-term impairment or loss of body function and for permanent serious disfigurement. He confirmed the minor’s general damages for pain and suffering, loss, amenities and disfigurement of the body. The life expectancy was not affected. The minor’s future loss of income will be affected for every operation that realizes if she is earning an income by the time the operation is done and she is not paid well for being off duty due to the operation. He opined anticipated future loss of income should be obtained from a plastic surgeon for the plastic surgery procedures. [91]  In his opinion, from an orthopaedic point of view, it is a possible loss of earning capacity due to the injuries sustained which should be evaluated by an occupational therapist and industrial psychologist. [92]  The possible loss of earning capacity due to the head and brain injury sustained should be evaluated by the relevant experts. The defendant’s evidence [93]  The defendant did not present any evidence, expert reports, practice note or heads of argument. The defendant elected to argue various points subtracted from plaintiff’s expert reports with an unsubstantiated opinion which did not negate the veracity of plaintiff's expert reports. [94]  The defendant also proposed a future loss of earnings amount of R6 637 566.00 less a 20% contingency and less a further 50% contingency but for the accident with a nett total of R1 991 269.80. The defendant, however, could not explain how the amount was calculated or arrived at. I accept the amount was deducted from Basis I of the actuary’s first report. EVALUATION OF THE EVIDENCE [95]  The neurosurgeon, Dr Kruger did a neurological examination and all the results were normal. He was not in a position to give an opinion regarding the clinical extent of the severe diffused axonal brain injury and the current complaints of cognitive mental problems and deferred to the opinion of a clinical psychologist/ neuropsychologist. [96]  The opinion of a clinical psychologist, Dr Watts, was obtained. He did a neuropsychological assessment. The minor’s inability to speak English fluently and her cultural background were factors which had to be considered when interpreting the assessment findings. The minor’s performance on tasks of attention and concentration arranged from average to impaired which points to fluctuations in attention. Her immediate attention span was average as well as the mental tracking skills. Her ability to visually keep track and to concentrate on more than piece of information at a time was impaired as was her performance on the oral version of a task of complex visual attention. [96.1] A task of eye-hand co-ordination and fine motor dexterity was average with the left hand and impaired with the right hand. The minor’s performance on tasks of visual perception, visuo-motor perceptual integration and judging spatial relations was intact. [96.2] The minor’s performance on tasks of verbal learning and memory evidenced mild impairments when non-meaningful material was involved. When dealing with material that was presented in a meaningful manner her performance was average. When she was required to learn and recall non-meaningful information the result was average for a child of her age. Her performance was also average when she was required to recall the material immediately after interference but mildly impaired after a further delay of 20 minutes. The minor’s recall of complex visual material was low average. [96.3] The minor’s verbal comprehension, expressive speech, reading and writing skills were adequate within the context of the evaluation whilst her arithmetic skills were impaired. The minor’s estimated intellectual capacity as measured on the Coloured Ravens Progressive Matrices, a non-verbal test of intellectual capacity, fell within the above average range. The minor did not have any executive skill problems at the time of the assessment. [96.4]  Dr Watts opined that the neuropsychological evaluation of the minor’s higher mental functioning presented constraints due to her inability to speak English fluently and her cultural background. Regarding the minor’s schooling and employment he deferred to the relevant experts. [97]  Dr Kruger also was not in a position to give an opinion regarding the current educational problems and deferred to the opinion of an educational psychologist. [98]  The Educational Psychologist, Me Mattheus, opined that the minor’s pre-accident potential was deduced from various information and she recorded that “very little objective information has been presented”. The educational assessment findings suggest that her cognitive functioning is falling in the extremely low range and that she is “presenting with significant cognitive difficulties” and that her post-accident school reports are evident of a slight decline in academic progress. [99]  Dr Kruger also opined that the minor has an 8% chance of developing epilepsy in future. [100]  Dr Kruger was also not in a position to give an opinion regarding the humerus fracture sustained on the right-hand side and he deferred to the opinion of an orthopaedic surgeon. [101]  The Orthopaedic Surgeon, Dr Van den Bout, calculated the minor’s impairment a 4% whole person impairment with no apportionment in terms of point 4.11 of the RAF 4 report. For the facial scarring, although an exception, a rating of 3% whole person impairment with a combined value of 7% whole person impairment was calculated. The whole person impairment in respect of “the head and brain injuries sustained should be obtained from a neurosurgeon / neurologist” and therefore was not included in his calculation. [102]  In his view the minor therefore did not pass the 30% rule of point number 5 of the RAF 4 report. He opined that the minor passes the narrative test for serious long-term impairment or loss of body function and for permanent serious disfigurement. [103]  Dr Kruger was further not in a position to give an opinion regarding the previous radial nerve palsy sustained in the accident and deferred to an opinion of a neurologist. No opinion was obtained from a neurologist by plaintiff. [104]  Dr Longano, Psychiatrist, opined that according to the emergency services report related to the minor’s transfer her Glasgow Coma Scale was 14/15 and with a Glasgow Coma Scale later of 10/15 (the actual figure is smudged and could be different). [105]  I have considered the medical records filed and the Emergency Medical Service Patient Report Form had only one reading of 14/15. The Sebokeng Hospital Observation Charts for 3 and 4 March 2018 did not have any readings for the GCS and the columns were vacant. [106]  Dr Jooste, Industrial Psychologist, opined that during the interview with the minor, Dr Linde was also in attendance, she had reported, ad paragraph 56 of the report, “that she enjoys her school and that she does not find it particularly difficult” and that her favourite subjects are mathematics and english. They opined that the minor appeared to be an intelligent girl who did not speak spontaneously about the accident and did not offer any complaints. [107]  Regarding her pre-accident potential they opined that unfortunately not much is known about the minor’s developmental history due to her mother passing away and her farther not playing a role in her life. The minor was not raised in the same household as her siblings who are employed as a vendor, assistant to a plumber and her sister is not employed. The application of the so called “brought brush” approach was recommended. They proposed two (2) scenarios namely scenario 1 Grade 12 with Higher Certificate (NQF level 5) and scenario 2 Grade 12 with Diploma (NQF 6). [108]  Regarding her post-accident potential they opined that the concerns raised by the various experts should be read with their opinion that the minor will suffer a future loss of earnings and earning capacity. In their view the minor is rendered practically unemployable and only found to be suitable for sheltered, sympathetic employment. This is based on her suitability by other reports filed. [109]  I considered all the opinions with a comparative analysis of the minor’s school reports pre- and post-accident. [110]  I now turn to all the minor’s school reports filed: Pre-accident Minor’s average:                          Grade average of all learners disclosed: Grade 1                68%                                                             62.92% Grade 2                86%                                                             77.83% Grade 3                81%                                                             70.17% Grade 3-Term 1    81.25%                                                        68.25% Post-accident Grade 3-Term 2      80.25%                                                         70.25% Grade 3-Term 3      85%                                                              70.75% Grade 3-Term 4      83.5%                                                           71.25% Grade 4                  77.5%                                                           66.17% Grade 5                  77.33%                                                         65.28% Grade 6                  80.25%                                                         65.79% Grade 7                  75.67%                                                         62.66% Grade 8                  66.67%                                                         44.08% Grade 9-Term 1      55%                                                              45.22% Grade 9-Term 2      53.11%                                                         40.44% [111]  It is evidend that the minor’s average remains 10% plus above the grade average from Grade 1 to Grade 9-Term 2 for the year 2024. The minor’s average percentage pre- and post-accident in relation to the grade average is also consistent and remains consistent 10% plus above the grade average. [112]  I am of the view that no deterioration could be established in the minor’s school reports as a result of the accident. The minor continues to attend a mainstream   school post the accident. The “sleeper effect” could also not be established. [113]  Premised on the analysis of the school reports I disagree that the minor is rendered unemployable. I am of the view that she recovered well in the circumstances to live a normal life for which one can only be thankful. QUANTIFICATION OF THE PLAINTIFF’S CLAIM Past medical and hospital expenses [114]  Plaintiff did not proceed with the claim for R20 000.00 and therefore no amount is allowed. Future medical hospital and related expenses [115]  Plaintiff in this regard seeks a full undertaking in terms of the Provisions of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 which I am in agreement with. Loss of earnings [116]  In the case of S v Thomas [2] wherein the mental condition of the accused, which was in question, was enquired into by two psychiatrists and they produced reports. In respect of the experts’ reports, the court said: ‘ When dealing with expert evidence the court is guided by the expert witness when deciding issues falling outside the knowledge of the court but within the expert’s field of expertise; information the court otherwise does not have access to. It is however of great importance that the value of the expert opinion should be capable of being tested. This would only be possible when the grounds on which the opinion is based is stated. It ultimately remains the decision of the court and, although it would pay high regard to the views and opinion of the expert, the court must, by considering all the evidence and circumstances in the particular case, still decide whether the expert opinion is correct and reliable.’ [117]  In RAF v Guedes [3] it was stated: “ 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 ) [4] .  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 I 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 [5] ).  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 assist in such a calculation, an actuarial computation is a useful basis for establishing the quantum of damages”. [118]  In the leading case of Southern Insurance Association Ltd v Bailey [6] the Court stated: “ Any enquiry into damages for loss of earning capacity is of its nature speculative… All that the Court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss. It has open to it two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a non possumus attitude and make no award .” [119]   It is trite that the percentage of the contingency deduction depends upon a number of factors and ranges between 5% and 100%, depending upon the facts of the case. [120]  The Court has a wide discretion that must, however, be based upon a consideration of all the relevant facts and circumstances. Justice and fairness to the parties is served by contingencies to be applied on the proven facts of the case. The discretion of the Court may not be usurped by the evidence of the experts such as the actuary. The actuary’s evidence only serves as a useful basis for establishing the quantum of damages. [121]  In order to determine the plaintiff’s claim for future loss of income or earning capacity, it becomes necessary to compare what the minor would have earned ‘but for” the incident with what she would likely have earned after the incident. The future loss represents the difference between the pre-morbid and post-morbid figures after the application of the appropriate contingencies. [122]  Mr Immermann, the Actuary, filed a further report based on recommendations of the Industrial Psychologist’s report and “performing calculations on this basis should in no way be construed that I certify the likely career paths but for and having regard to the accident to be realistic”. On the assumptions he proposed: Basis I certificate level of education but for the accident R7 929 414.00 with a 20% contingency and a nett future loss of R6 343 531.00. Basis II diploma level of education but for the accident R10 080 428.00 with a 20% contingency and a net future loss of R8 064 342.00. [123]  I am of the view, after having considered all the evidence, that the average of Basis I and Basis II of the actuary’s further report is best suited to the minor’s circumstances with a contingency of 90% to be applied. The average amount of R 9 004 921.00 after applying the contingency, is therefore R 900 492.10 for loss of income/earning capacity for the minor. General damages [124]  The plaintiff claimed R3 000 000.00 for general damages. At the hearing it was argued that an amount of R2 000 000.00 to R2 500 000.00 would be fair and reasonable in this matter. [125]  The defendant argued that this Court did not have jurisdiction on general damages and same should be postponed sine die . Defendant argued further that a without prejudice offer was made during the settlement negotiations which was rejected. Counsel for the plaintiff responded that the offer was not rejected but just not accepted. This Court therefore cannot deduct that an offer was made for, amongst other, general damages. [126]  It is trite that previous awards in comparable matters are intended to only serve as a guide. Each case should be determined based on the considerations of its own facts. I considered the facts of the matter and the authorities that I have been referred to and I am of the view that the issue of general damages be postponed sine die and referred to the Health Professions Council of South Africa for a determination. COSTS [127]  The general rule in matters of costs is the successful party is intitled to be awarded costs and this rule should not be departed from except where there are good grounds for doing so. [128]  There is no reason for the plaintiff not to be awarded costs of the trial and for such costs to include the costs of Senior Counsel. ORDER In the result I make the following order: 1. In respect of the claim, being administered by the defendant under link number 4858053 , the defendant is liable to the plaintiff, in his representative capacity, to the extent of 100% (one hundred percent) of the plaintiff’s claims for future medical/hospital expenses, future loss of earnings as well as general damages consequent upon the injuries sustained by the minor, KM, in the motor vehicle collision which occurred on 3 March 2018. 2. The defendant shall make payment to the plaintiff, in his representative capacity on behalf of the minor, KM, the amount of R 900 492.10(nine hundred four hundred and ninety two rand and ten cents) made up as follows: 2.1   Future Loss of Earnings – R 900 492.10(nine hundred four hundred and ninety two rand and ten cents); together with interest calculated in accordance with the Prescribed Rate of Interest Act, Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act, Act 56 of 1996 (“the Act”). 3.  The issue of general damages is postponed sine die and referred to the Health Professions Council of South Africa for a determination. 4.  The payment referred to in paragraph 2 of this order shall be made into the trust account, as contemplated in Section 86(5) of the Legal Practice Act 28 of 2014 , of the plaintiff’s attorneys for the sole benefit of the minor, KM, pending the establishment of the TRUST contemplated in paragraph 7 hereunder. The trust banking details of plaintiff’s attorneys are as follows: NAME                                     A[…] V[…] W[…] M[…] W[…] I[…] BANK                                      FIRST NATIONAL BANK BRANCH                                 S[…] TYPE OF ACCOUNT               T[…] ACCOUNT NUMBER              6[…] BRANCH CODE                      2[…] E-MAIL a[…] REFERENCE                           Z[…] 5.  The defendant shall furnish the plaintiff with an undertaking as envisaged in Section 17(4)(a) of the Act in respect of the costs of the future accommodation of the minor, KM, in a hospital or nursing home or treatment of or rendering of a service to her or supplying of goods to her arising out of the injuries sustained by her in the motor vehicle collision which occurred on the 03 rd of March 2018 , after such costs have been incurred and upon proof thereof, such undertaking to include: 5.1  the reasonable (taxed or agreed) costs incurred by the establishment of a TRUST as contemplated in paragraph 7 below and the appointment of a trustee(s); 5.2  the reasonable costs incurred in the protection, administration and/or management of the award and the statutory undertaking furnished in terms of Section 17(4)(a) of the Act, which costs shall be limited to the prescribed tariff applicable to curators as reflected in Government Notice R1602 of 1 July 1991, specifically paragraphs 3(a) and 3(b) of the Schedule thereto; and 5.3  the reasonable costs incurred in providing security to the satisfaction of the Master of the High Court of South Africa for the administration of the award and the annual retention of such security to meet the requirements of the Master in terms of section 6(2)(a) of the Trust Property Control Act 57 of 1988 (as amended). 6.  The defendant shall pay the plaintiff’s costs of the suit, as taxed or agreed, on a scale as between party and party, such costs to include: 6.1  The costs occasioned by the employment of the following expert witnesses (medico-legal reports and addendums thereto, preparation, reservation and appearance fees, if any): 6.1.1  Dr Kruger – Neurosurgeon; 6.1.2  Dr Roussouw – Ear, Nose and Throat Specialist; 6.1.3  Dr Berkowitz – Plastic and Reconstructive Surgeon; 6.1.4  Me Mattheus – Educational Psychologist; 6.1.5  Mr Jooste – Industrial Psychologist; 6.1.6  Dr Longano – Psychiatrist; 6.1.7  Me Morland – Occupational Therapist; 6.1.8  Dr Watts – Clinical Psychologist; 6.1.9  Mr Immermann – Actuary; 6.1.10 Dr Van Den Bout – Orthopaedic Surgeon 6.2   Costs on Scale C (the plaintiff employed the services of Senior-Counsel). 6.3   The costs of the application for the appointment of the Curator ad Litem , as well as the costs and fees of the Curator ad Litem , Advocate Herman Kriel; 6.4   In the event of these costs not being agreed, then: 6.4.1   the plaintiff’s bill of costs will be served on the defendants; and 6.4.2   once the plaintiff’s bill of costs has been taxed same will be served on the defendant who will be allowed 180 (one hundred and eighty) days to make payment after such service. 7.  The plaintiff’s attorney is ordered and directed to cause a Trust to be established and is authorized to sign all documents necessary for the formation of the Trust for the benefit of the minor, KM, such Trust to be held by Uberrima Phoenix (Pty) Ltd, in accordance with the written consent dated 26 th July 2024, annexed hereto as Annexure “ A ”. 8.  The Trust instrument, attached hereto as Annexure “ B ”, shall inter alia make provision for the following: 8.1   that the minor, KM be the sole beneficiary of the trust; 8.2   that the Trustee(s) are appointed with those powers and duties as set out in Annexure “ B ”; 8.3   that the Trustee(s) of the Trust to be formed shall take all the requisite steps to secure an appropriate bond of security to the satisfaction of the Master of the High Court for the due fulfilment of his/her obligations and to ensure that the bond of security is submitted to the Master of the High Court at the appropriate time as well as to all other interested parties, if so required by the Master of the High Court; 8.4   the duty of the Trustee(s) to disclose any personal interest in any transaction involving the Trust property; 8.5   the termination of the Trust shall be subject to the leave of the High Court upon application, the costs of any such application which shall be costs in the main action herein, and for which purposes notice of such application is to be given to the Defendant; 8.6   the Trustee(s) shall be entitled, if he/she deems it necessary, to utilize the income of the Trust for the maintenance of KM; 8.7   that the Trustee(s) provide security to the satisfaction of the Master of the High Court; 8.8   that ownership of the Trust property shall vest in the Trustee(s) of the Trust in their capacities as Trustee(s); 8.9   procedures to resolve any potential disputes, subject to the review of any decision made in accordance therewith by this Court; 8.10   that any amendment of the Trust instrument be subject to approval and leave of the Master of the High Court and/or this Court; 8.11   in the event of the death of KM, the Trust shall terminate, and the Trust assets shall pass to the estate of KM; 8.12   that the Trust property and the administration thereof be subject to an annual audit; 8.13   the provisions of the Trust Deed shall be in accordance with the provisions of the Trust Property Control Act, Act 57 of 1988, subject to the approval of the Master of the High Court. 9.  The plaintiff’s attorneys of record are authorized to deduct and/or pay from the capital payment received from the defendant, pending the formation of the Trust, the following: 9.1   the bill of costs of A.F. Van Wyk Mabitsela Williams Incorporated, including disbursements, subject to the review and/or taxation thereof by the Trustees to be appointed and/or the Taxing Master of the High Court. 10.  The plaintiff and the plaintiff’s attorneys concluded a contingency fee agreement. ALLEN AJ ACTING JUDGE OF THE HIGH COURT This judgment was prepared by Acting Judge Allen. It is handed down electronically by circulation to the parties or their legal representatives by email, by uploading to the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The date for hand-down is deemed to be 27 August 2024. HEARD ON: 29 July 2024 DECIDED ON: 27 August 2024 For the Plaintiff: Adv GJ Strydom SC Instructed by A F Van Wyk Mabitsela Williams Inc For the Defendant: Mr Madasela Instructed by The State Attorney Johannesburg [1] N obo N v RAF (17439/2013) [2015] ZAGPJHC 77 (27 April 2015)- Weiner J concluded that there is a rebuttable presumption that the child, who was also run down by a vehicle as a pedestrian, was doli incapax, which had to be rebutted by the defendant. Further, if the minor child was doli incapax and aware of her responsibilities (in crossing a street), and could have been liable for negligence, the Defendant owed the duty to discharge that burden. [2] 2016 (4) NR 1154 (HC) ([2016] NAHCMD 320) [3] 2006 (5) SA 583 (SCA) at para 8 [4] 1992 (1) SA 1 (A) at 5C - E. [5] 1984 (1) SA 98 (A) [6] 1984 (1) SA 98 (A) 113H-114E sino noindex make_database footer start