THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 584/ 2023
In the matter between:
AMORÉ VAN DER MERWE APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: Van der Merwe v Road Accident Fund (584/2023) 202 5 ZASCA
28 (28 March 2025)
Coram: NICHOLLS , MABINDLA -BOQWANA and MOLEFE JJA
Heard : 12 November 2024
Delivered : 28 March 2025
Summary: Damages claim – motor vehicle accident – orthopaedic injuries –
liability conceded – undertaking for future medical and hospital expenses – general
2
damages not dispute d – loss of earnings and loss of earning capacity only issue in
disput e.
Causation – novus actus interveniens – inappropriate ly raised and not supported by
evidence .
3
ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Van der
Westhuizen , Phahlane J J and De Vos AJ, sitting as court of appeal) :
1 The application to introduce new evidence is dismissed with costs including
the costs of two counsel, where so employed.
2 The appeal is upheld with costs including the cost of two counsel, where so
employed.
3 The order of the full court is set aside and replaced with the following order:
‘ 1 The appeal is upheld with costs including the costs of two counsel ,
where so employed .
2 The order of the trial court is set aside and replaced with the following
order:
“1. The defendant is liable for 100% of the plaintiff's agreed or proven
damages.
2. The defendant shall furnish the plaintiff with a written undertaking in
terms of section 17(4)( a) of the Road Accident Fund Act 56 of 1996, as
agreed with the plaintiff.
3. The defendant shall pay to the plaintiff the sum of R 800 000 in
general damages.
4. The defendant shall pay the plaintiff’s costs.”
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3 The quantification of loss of earnings is remitted to the trial court for
determination .’
JUDGMENT
Mabindla -Boqwana JA ( Nicholls and Molefe JJA concurring):
[1] The appellant, Ms Amoré van der Merwe instituted action in the Gauteng
Division of the High Court, Pretoria against the respondent, the Road Accident Fund ,
for damages she suffered as a resul t of injuries she sustained in a motor vehicle
accident. She claimed past hospital/medical and related expenses; past loss of
earnings; future loss of earnings; estimated future medical expenses; and general
damages. I shall henceforth refer to the parties as the plaintiff and the defendant, as
in the action.
[2] The stated motor vehicle accident occurred o n 27 October 2012, near
Modimolle in Nylstroom . The plaintiff was then 19 years old . She was a passenger
seated on the back of a ‘ bakkie’ which capsized and rolled over her . As a result, she
suffer ed severe orthopaedic injuries , namely :
(a) a fracture of the femur o n the right lower limb ;
(b) dislocation of the right hip ;
(c) bilateral superior and inferior pubic rami fractures;
(d) soft tissue injury of the right arm and shoulder joint ; and
(e) an injury to the lumbar spine.
In August 2014 she received a total hip replacement.
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[3] At the pre -trial conference held on 3 October 2017, the de fendant recorded its
previous concession that it was fully liable on the merits and only issues pertaining
to the quantum had to be determined at the trial. Further, i n a letter dated 6 October
2017, the defendant’s attorney admitted (on behalf of her client) the defendant’s
liability for general damages as follows :
‘the [p]laintiff sustained orthopaedic injuries (pelvic fracture, fracture dislocation right hip and
blunt trauma both knees ) and is entitled to compensation for general damages .’ (Emphasis added.)
[4] At the trial, t he defendant’s counsel confirmed that the defendant did not have
an issue with the amount claimed for general damages. The amount claimed was
R800 000. In addition, the defendant’s to give a written undertaking in terms of s
17(4)( a) of the Road Accident Fund Act 56 of 1996 (the RAF Act) was confirmed .
This is also recorded in the minutes of the pre -trial conference held on 3 October
2017. It was clear that the issue for determination at the trial was loss of
earnings/earning capacity.
[5] The plaintiff testified from Auckland, New Zealand via Skype because her
physical condition impeded her travel ling to South Africa . She also called t wo
expert witnesses, Ms Eleanor Bubb, a Clinical and Educational Psychologist and Ms
Susanna Maree, an Occupational Therapist .
[6] The plaintiff ’s testimony was brief . She was asked to confirm whether the
information in various expert reports was relayed by her t o the experts , which she
did. She then testified about her medical condition since the accident . She stated that
she was immobile, and her medical condition had made it impossible for her to
obtain gainful employment . She could not drive a motor vehicle and found it hard to
work.
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[7] She expressed her hope that one day when she was better and had gained
confidence and strength, she would like ‘to better herself’ by studying and working.
The defendant’s counsel did not cross -examine the plaintiff.
[8] The second witness for the plaintiff, Ms Bubb was asked whether the plaintiff
would in future be able to obtain and sustain any employment of a sedentary nature,
in an administrative role as had been previously suggested . Her response was that
the latest medical evidence which had shown a worsened condition, presented the
plaintiff with even fewer chances of being able to find and sustain work in a
sedentary position. She, in any event, had previously made findings that the
plaintiff’s chances of being empl oyed were not probable. This was so considering
the neurocognitive and neuropsychological deficits as well as the plaintiff’s
academic and scholastic challenges . These deficits added to the difficulties that were
noted by the doctors before, namely, the plaintiff’s ongoing severe pain, and her
difficulty with sitting, standing or walking for long periods. Ms Bubb was also not
cross -examined.
[9] The third witness, Ms Maree, referred to her initial report in which she had
stated that the plaintiff would be capable of doing less strenuous work in a more
sedentary office setting. She testified that Ms Bubb’s report caused her to alter the
opinion she had previously expressed. With reference to the new documentary
evidence, her opinion was that the plaintiff would not be able to succeed in any
administrative type of work, with a high level of cognitive involvement. This was
due to the chronic traumatic stress and the major depressive disorders that she was
diagnosed with. The plaintiff also had problems with sustained attention, slow work
speed and fluctuating moods combined with her chronic pain.
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[10] Yet again , no meaningful questions were asked by the defendant’s counsel
from this witness , save for seeking clarity about whether Ms Maree had changed her
mind from her original opinion. Neither was she cross -examined nor was any
objection raised to her testimony.
[11] After the completion of the plaintiff’s case, the defendant closed its case
without calling any witnesses. Surprisingly, and for the first time in closing
argument, the defendant’s counsel raised ‘an event’ which he argued constituted a
novus actus interveniens [new intervening cause] . He was referring to a statement
recorded in the plaintiff’s Industrial Psychologist’s report dated 1 March 2017,
which s aid:
‘Post -morbid, on 8 October 2015, she fell from stairs, and she sustained an injury to her right
knee and to her lower back.’
[12] He, however, did not read the paragraph that followed, where the following
was recorded:
‘According to Ms van der Merwe she sustained the following injuries during the accident :
. . .
• Injury to the right knee’ (Emphasis added.)
This is significant because it records that the injury to the right knee was sustained
before the fall on the stairs.
[13] The defendant’s counsel’s contention at the trial was that all the experts had
examined the plaintiff after the incident where she fell from the stairs , but that she
had fallen , was only mentioned in her Industrial Psychologist ’s report. He further
argued that the plaintiff did not distinguish between the injuries sustained in the
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motor vehicle accident and those she sustained as a result of the fall. As such , it could
not be ascertained which parts of the plaintiff’s loss of earning capacity could be
ascribed to the initial injuries , ie those she suffered in the motor vehicle accident,
and those suffered during the fall. Because of that, so he contended, it would not be
possible for the trial court to make a finding , in this regard .
[14] The last string to his bow was that , for any cognitive deficits to have occurred,
there would have had to be brain injury as a conditio sine qua non . This, he argued ,
did not happen in th is case . He contended that, r egard could not be had to the
plaintiff’s qualifications, career history and the future aspirations. This last
submission is odd, since the defendant’s own Industrial Psychologist took these
factors into account, in her report. Furthermore, the submissions were not based on
any expert opinion but remained counsel’s own, which is not helpful.
[15] Driven by this line of argument, the defendant’s counsel suggested
postponement of the trial for the plaintiff’s experts to rewrite their reports, in which
they would quantify the loss of earning capacity afresh by excluding the alleged
novus actus interveniens . In the alternative he sought a bsolution from the instance.
[16] The trial court embraced the defendant’s counsel’s argument. Its judgment
was entirely devoted to the novus actus point . The court made, inter alia, the
following findings:
‘[14] . . . Firstly, the fact that the plaintiff sustained further injuries almost three years after the
motor vehicle accident was peculiarly within her knowledge. It appears that she had been to
orthopaedic surgeon Dr Malan on 13 November 2015 about three week s after she fell on 8 October
2015 yet no mention is made of the fall down the stairs to him. One can only assume that she did
not mention it to Dr Malan. The same can be said about her visits to the other experts. She consulted
Mr P. C. Died ericks o n 4 November 2015; neurosurgeon Dr Earle on 3 November 2015; Dr E.F.
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Gordon (plastic surgeon) on 13 November 2015; the occupational therapist, Ms Maree on 14
November 2015 ; neuro psychologist Mr Leon Roper on 3 June 2016 and Ms Bubb on 22 February
2017. None of them, except Mr Deidericks, indicate that the plaintiff had told them about the fall
on 8 October 20 15.
[15] The result is that all the plaintiff’s experts took the injuries she sustained in the fall from the
stairs into account when compiling their reports and forming their opinions. The defendant could
not have been expected to do anything about that.
[16] The onus is on the plaintiff to prove causation, which, in my view, given that it was peculiarly
within the plaintiff’s knowledge that she fell down the stairs and sustained injuries, also means to
exclude any interruption of causation. The various ex perts should have been briefed to exclude
later injuries from their opinions.’
[17] The court isolated what it termed as ‘two injuries’ (right knee and lower back) .
These, the court said, were sustained from the fall down the stairs . It concluded that
the plaintiff had proved all the orthopaedic injuries contained in the expert reports
including the se ‘two injuries’ which it found constitut ed the novus actus . In the
court’s view, there was no ‘primary fact’ evidence by the plaintiff to link the ‘two
injuries’ constituting the novus actus to the motor vehicle accident.
[18] The trial court, thus, found itself unable to determine the quantum and granted
absolution from the instance with costs. It , however , gave leave to appeal its
judgment to the full court of the same Division. The full court confirmed the
reasoning and order of the trial court and dismissed the appeal. The plaintiff
subsequently approached this Court seeking special leave to appeal, which was
granted on 24 May 2023.
[19] In this Court, counsel for the plaintiff argued that the trial court had erred in
law and had misdirected itself by finding that the fall from the stairs constituted a
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novus actus interveniens . He further submitted that the trial court erred by
concluding that the defendant was not required to plead the novus actus interveniens
as a substantial defence and cross -examine the plaintiff.
[20] As the point of departure , the defendant conceded liability for the payment of
the damages suffered by the plaintiff arising from injuries occasioned by her in the
motor vehicle accident. As a result of that , the element of causation could no longer
be an issue. Moreover, the parties specifically agreed that the only issue for
determination at the trial was the award of quantum in respect of loss of earnings
and/or earning capacity.
[21] Not only was the fall from the stairs not canvassed with the plaintiff and her
expert witnesses during her evidence but it was also not pleaded. The plaintiff was
not given an opportunity while in the witness box to provide an explanation on the
issue that led to the dismissal of her case. Counsel for the plaintiff in the trial was
entitled to assume that her and her experts’ unchallenged testimonies were accepted
as correct.
[22] It is trite that a party cannot be allowed to plead one case and attempt to
present another case at the trial. By entertaining the issue, the trial court
impermissibly went beyond the dispute identified by the parties as that which it was
called to determi ne. It was manifestly unjust for the plaintiff to be required to rebut
a case which she was never called to meet, and which was referred to for the first
time in closing argument. This is a classic case of trial by ambush, and it cannot be
countenanced.
[23] Assuming the point was properly raised as a defence, it lacks merit, for the
following reasons. A novus actus interveniens ‘is an independent event which, after
11
the wrongdoer’s act has been concluded, either caused or contributed to the
consequence concerned’.1 The extent to which the intervening event affects the
liability of the wrongdoer is an important issue. It relates to causation, specifically
legal causation.
[24] Causation involves two distinct enquiries. The first, is factual causati on,
expressed as follows – ‘but for’ the wrongful conduct of the defendant, the plaintiff
would not have suffered the loss. The second inquiry of legal causation examines
‘whether the wrongful act is linked sufficiently closely or directly to the loss for
legal liability to ensue; or w hether the loss is too remote’.2
[25] A novus actus may neutralise the causative potency of the defendant’s original
conduct. It may break the causal chain between the initial conduct and the liability
attributed to the wrongdoer. To constitute a novus actus , the secondary act must not
be reasonably foreseeable. If it is reasonably foreseeable that it may occur , at the
time of the initial wrongful act, the secondary act cannot be considered as a novus
actus.
[26] In OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd3, this Court
said:
‘When directed specifically to whether a new intervening cause should be regarded as having
interrupted the chain of causation (at least as a matter of law if not a matter of fact), the
foreseeability of the new act occurring will clearly play a prominent role. . . If the new intervening
cause is neither unusual nor unexpected, and it was reasonably foreseeable that it might occur, the
original actor can have no reason to complain if it does not relieve him of liability.’
1 J Neetling, JM Potgieter, Law of Delict , 8th Edition at 250.
2 MEC for Health, Eastern Cape v Mkhitha (91221/2015) [2016] ZASCA 176 para 13.
3 Ok Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 (3) SA 688 (SCA) para 33.
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[27] In the present matter, t he expert opinion as well as the undisputed
documentary evidence before the trial court clearly indicated that the plaintiff had
suffered serious mobility restrictions and had balance problems since the motor
vehicle accident. These occurred before the fal l on 8 October 2015. The defendant
has not provided expert opinion as to why these restrictions and balance problems
were not consistent with the vehicle having rolled over the plaintiff and crushed her
pelvis .
[28] It would have been reasonably foreseeable that given the nature of the
accident, the plaintiff may be prone to lose her balance and fall. It is instructive that
the defendant’s Occupational Therapist had noted in the report that the plaintiff had
‘indicated that the stairs at the door of her home are slippery. Adjustments to her
current accommodations are recommended to prevent further injuries.’ This
recommendation most certainly proved the reasonable foreseeability of the risk
posed by the slippery floor posed to the plaintiff post -morbid.
[29] In the report compiled by Ms Bubb dated 22 February 2017, it is reported of
the plaintiff’s interview on 11 November 201 5:
‘She is very clumsy and walks into things and drop s things . . . walks sideways like a crab, falls
easily and is full of blue marks’. (Emphasis added.)
[30] The remark that she falls easily may be an answer as to why she did not
mention the fall from the stairs as an unusual event to the experts other than the
Industrial Psychologist . This unfortunately was not explored with her at the trial ,
since she was not asked any questions regarding this issue. The trial court simply
drew a negative inference about her alleged failure to report the incident.
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Additionally, there was no evidence, factual or expert, to support the view that the
fall from the stairs was outside the ordinary course of events that could be construed
as a totally unforeseen or a surprising intervening event, to such an extent that it
disturbed the ordinary causal flow and sequelae subsequent to the injuries sustained
in the motor vehicle accident.
[31] None of the experts referred to any symptoms that could not be attributed to
the sequelae of injuries sustained in the motor vehicle accident. In the end, the mere
fact that the plaintiff fell subsequent to the accident and sustained injuries as a result
thereof, did not establish that there had been a new intervening cause which broke
the chain of causation. It c annot be said that the fall was an unconnected and
peripheral causative factor or event ,4 which was not foreseeable, and which broke
the causal chain between the wrongful conduct of the insured drive r and the
plaintiff’s damages. While it is not necessary to go any further on this issue, it is
instructive that the medical and hospital records dated before the alleged fall from
the stairs, recorded the right knee and lower back pain as having been present after
the accident. Consequently, the trial court erred in accepting the contention by the
defendant’s counsel.
[32] The plaintiff also brought an application seeking to introduce further evidence
by Dr Preddy, to put it beyond doubt that the injury on the right knee was causally
linked to the motor vehicle accident. The evidence sought to be introduced takes the
matter no further. The application must accordingly fail.
4 See Tuck v Commissioner for inland Revenue 1988 (3) SA 819 (A) at 833A , where a novus actus interveniens was
described as an ‘ . . . unconnected and extraneous causative factor or event’.
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[33] It remains to determine whether this Court should itself determine the
quantum or refer the matter back to the trial court for the determination of the
quantum. Due to the premise of its findings, t he trial court did not award any
damages . Matters that the defendant had conceded, ie general damages and the
undertaking made in terms of s 17(4)( a) of the RAF Act became of little count .
[34] During the proceedings in the trial court, the defendant’s counsel confirmed
that the defendant did not have an issue with the amount of R800 000 claimed for
general damages. For this reason, the plaintiff is entitled to the general damages as
claimed. This is consistent with the admission in the letter from the defendant’s
attorney referred to in paragraph 3 above . The plaintiff ’s counsel requested this
Court to make orders in respect of issues that were agreed upon but never awarded .
He further sought th e Court to determine the outstanding issue of loss of earnings .
[35] This request was made based on the extensive period that had passed since the
acciden t, the admissions made by the defendant and the prejudice suffered by the
plaintiff because of the prolonged litigation . We requested counsel to file further
supplementary papers to address this issue. Having carefully considered the
submissions and the proposals made by the parties, the manner in which the
calculations are presented in the plaintiff’s actuarial report, which the submissions
were based on, it is evident that further interrogation of these issues is required,
which this Court, as the appeal court, is constrained from engaging in. The further
difficulty is that the trial court did not determine the issue. We accordingly do not
have the benefit of its view on the figures provided as well as the contingencies that
may be applied. For these reasons, i t seems appropriate that the determination of the
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loss of earnings be remitted to the trial court. It is, however, appropriate to make an
order on those aspects of the claim the parties agreed upon .
[36] As to the issue of costs , the plaintiff was represented by two counsel from the
trial through to the appeals in the full court and in this Court . Appearance of two
counsel at the trial stage , in an instance where the merits were conceded and most of
the heads of damages had been agreed to , was not warranted. On appeal, however,
the novus actus point had arisen due to the trial court’s judgment, which would
justif y the employment of two counsel. As regards costs for the application to adduce
further evidence on appeal, t he plaintiff must bear those.
[37] In the result, the following order is made:
1 The application to introduce new evidence is dismissed with costs including
the costs of two counsel, where so employed.
2 The appeal is upheld with costs including the cost of two counsel, where so
employed.
3 The order of the full court is set aside and replaced with the following order:
‘ 1 The appeal is upheld with costs including the costs of two counsel ,
where so employed .
2 The order of the trial court is set aside and replaced with the
following order:
“1. The defendant is liable for 100% of the plaintiff's agreed or proven
damages.
16
2. The defendant shall furnish the plaintiff with a written undertaking in
terms of section 17(4)( a) of the Road Accident Fund Act 56 of 1996, as
agreed with the plaintiff.
3. The defendant shall pay to the plaintiff the sum of R 800 000 in
general damages.
4. The defendant shall pay the plaintiff’s costs.”
3 The quantification of loss of earnings is remitted to the trial court for
determination.’
_________________________
NP MABINDLA -BOQWANA
JUDGE OF APPEAL
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Appearances
For the appellant: G Lubbe with HR du Toit
Instructed by: Ackerman Swart Inc, Pretoria
Lovius Block, Bloemfontein
For the respondent: S Gu ndelphenni ng with M H Mokale
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein.