Abstract
In this article we provide a critical examination of recent South African court decisions concerning damages claims in medical negligence and Road Accident Fund cases, highlighting the challenges posed by unreliable expert testimony and the speculative nature of quantifying damages, particularly future loss of income. The discussion is situated within the broader framework of the South African law of damages. It distinguishes between general damages encompassing non-patrimonial losses such as pain, suffering, emotional shock and loss of amenities of life on the one hand, and special damages, which refers to patrimonial losses that are objectively measurable, such as medical expenses and loss of earnings, on the other. While actuarial calculations provide a structured basis for estimating future losses, courts retain a wide discretion and the speculative character of these calculations often complicates the determination of fair and reasonable compensation.
We emphasise that quality expert evidence is indispensable in negligence cases, especially in respect of medical malpractice claims, where courts generally lack expertise to evaluate medical risks. However, experts must remain confined to their fields of specialisation, provide logical and fact-based reasoning and avoid speculation or bias. We draw on landmark cases to illustrate the principles governing expert testimony, emphasising that courts are not bound by expert opinions and may reject even agreed expert conclusions if they are found to be unconvincing. We caution against the misuse of experts as “hired guns” and stress the importance of objectivity and credibility. We emphasise that the credibility of expert witnesses is not only a matter of professional ethics, but also a cornerstone of judicial integrity. Courts must be vigilant in scrutinising the reasoning and factual bases of expert opinions, ensuring that testimony is not merely persuasive, but scientifically and logically sound. We argue that the adversarial system places pressure on experts to align with the interests of the parties who call them as witnesses, but this must be counterbalanced by strict procedural safeguards and judicial oversight.
We also explore the role of actuarial testimony, noting its value in providing a scientific framework for estimating future earnings, while reiterating that courts must evaluate the assumptions underlying such models. We highlight that actuarial evidence, while valuable, should never be treated as conclusive, since it rests on assumptions about uncertain future events. Judicial discretion – a necessary corrective to the limitations of statistical modelling – should be exercised with caution, especially in considering expert evidence.
The Uniform Rules of Court, particularly Rule 36, are examined for their regulation of medical examinations and expert reports in personal injury cases, to ensure transparency and fairness in litigation. Rule 18 requires detailed pleading of damages, while Rule 33(4) facilitates the admission of documents to expedite proceedings. We then turn to the “once and for all” rule that requires damages, both past and future, to be claimed and awarded in a single action. The discussion of this rule further illustrates the tension between legal certainty and substantive justice. While lump-sum awards provide closure, they risk unfairness in cases where future losses, particularly in medical negligence claims involving children or long-term disabilities, are difficult to predict. We suggest that structured or periodic payments could offer a more equitable solution, aligning compensation with actual needs as they arise. This approach, however, requires legislative reform, as courts are bound by existing statutory frameworks. While this principle promotes finality, critics argue that it can be unjust in cases of unpredictable future harm. The Constitutional Court in MEC for Health v DZ obo WZ acknowledged the issue, but deferred reform to the legislature. More recent cases, such as MSM obo KBM v MEC for Health and BN obo AN v MEC for Health, Eastern Cape, suggest a gradual shift toward flexibility, allowing services in kind or considering periodic payments in appropriate circumstances. In a recent (2026) judgment of the Supreme Court of Appeal in TN obo BN v MEC for Health, Eastern Cape Government, the court indicated that the MSM case had been wrongly decided and that any changes to the fundamental principles of the law of delict fall within the domain of the legislature.
In the article we canvass all of the abovementioned challenges through detailed analysis of the case, Den Hartog NO obo NAH v Road Accident Fund, where expert testimony was undermined by incomplete hospital records and limited consultation, which raised concerns about the reliability of medical evidence. Similar issues are apparent in the cases of NIN obo BN v Road Accident Fund and AAS obo CMMS v MEC for Health, Gauteng Province, reinforcing the need for credible, objective expert testimony supported by comprehensive records. We conclude that systemic problems in damages litigation – unreliable expert evidence, speculative actuarial assumptions and rigid application of the “once and for all” rule – undermine fairness and justice. We recommend strengthening standards of expert testimony, improving hospital record-keeping, encouraging joint expert reports and considering legislative reform to allow structured or periodic payments.
We ultimately call for a more nuanced and flexible system of damages assessment that integrates credible expert evidence, careful actuarial input and judicial discretion and argue for reform that accommodates the complexities of modern medico-legal disputes.
Keywords: earning capacity; expert evidence; general damages; law of damages; medical negligence; “once and for all” rule; quantification of damages; Road Accident Fund claims; special damages
- This article’s featured image was created by Werner Pfennig and obtained from Pexels.