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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 81594/2014
In the matter between:
In the matter between:
EVEL MGWENA Plaintiff
and
ROAD ACCIDENT FUND Defendant
REASONS FOR ORDER
MOTHA, J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
29 April 2025 _________________________
DATE SIGNATURE
Introduction
[1] As a result of a motor vehicle accident o n 8 February 2014, the plaintiff
sustained facial abrasions . On 27 May 2014, she lodged a claim against the
Road Accident Fund. Having obtained leave to proceed by way of default
judgment , her counsel submitted that for her scarring an amount of
R730 000.00 for general damages was reasonable . After hearing counsel ’s
submissions , the court granted an order awarding general damages in the
sum of R350 000.00. Dissatisfied with the order, the plaintiff seeks reasons of
the order handed down on 28 February 20 25.
Background
[2] Following the accident , the plaintiff was taken to Mapulaneng Hospital , where
she was admitted at 21h50 and discharged on the same day (8 February
2014 ). From the hospital records — which noted a Glasgow Coma Scale
(GCS ) of 15/15 — the Court ascertained that the recorded injuries were as
follows :
a. Multiple abrasion s around the left eye with a deep laceration measuring
approximately 2cm;
b. An abrasion on the right side of the face ;
c. Abrasions on the right tibia; and
d. Abrasion s on both arms .
[3] The hospital record s further note that the plaintiff “d enies headache ,
no dizziness ”. It is perhaps noteworthy that, on 15 February 2014 , the plaintiff
was admitted for severe hypertension , which appears to be u nrelated to the
motor vehicle accident .
[4] In the particulars of claim , it is record ed that the plaintiff sustained the
following injuries :
a. Multiple injuries to the head ;
b. Injuries to the face ;
c. Injuries affecting the upper portion of the right eye ;
d. Injuries to both the left and right arms ;
e. Injuries to the back ; and
f. Injuries to both the left and right leg .
Medico -Legal Reports and Issues
[5] For the purpose of compiling medico -legal reports, the plaintiff was examined
by the following professionals: an orthopaedic surgeon, a plastic surgeon , a
neurologist, an e duca tional psychologist, a physician, an o ccupational
therapist , an industrial psychologist , and an actuary .
Orthopaedic Surgeon
[6] Dr Vic Oelofse examined the plaintiff on 25 January 2018 and recorded that
she sustained the follow ing injuries:
“- Multiple abrasions on the right side of the face
- Abrasions around the left eye with a 2 cm deep laceration ”.1
[7] In the medico -legal report , Dr Oelofse noted that the plaintiff was admitted
and discharged on the same day . Following the cleaning and dressing of all
abrasions, analgesics and anti -inflammatory medications were prescribed.
The doctor di agnos ed the plaintiff with the follow ing:
“- Contusion of the back muscle s
- Inconspicuous scar at the left eye .”2
[8] No x-ray investigation was requested. Dr Oelofse conclude d by stating that
“[t]he orthopaedic injury does not meet the requirements for a serious injury
1 Dr Oelofse ’s medico -legal report at paras 2 and 4 .
2 Id at para 4 .
under the Narrative Test ”.
Plastic and Reconstruction Surgeon
[9] Dr Pienaar examined the plaintiff on 16 April 2018 , approximately seven years
ago. He recorded th at the plaintiff su stained the following injuries:
a. Laceration on the f orehead ;
b. Laceration to the l eft eyebrow ;
c. Laceration of the l eft upper eyelid ;
d. Abrasion to the left side of the chest ;
e. Injury to the b ack;
f. Abrasion to the left elbow ; and
g. Abrasion s to both knees.
[10] Contrary to what is written in the hospital records and recorded by the
orthopedic surgeon , Dr. Pienaar noted that the plaintiff stayed for one day at
Mapulaneng Hospital. He recorded that the plaintiff had a Whole Person
Impairment ( WPI) of 15% and opined that she qualified for general damages
in terms of the Narrative Test due to serious permanent disfigurement. He
expressed the view that the facial scars would likely subject the plaintiff to
social rejection , stigmati sation and inappropriate re marks from her peers .
According to his assessment, the scarring had interfered with her normal
emotional and psychological development and well -being . He further noted
that the scars rendered the plai ntiff shy, withdrawn , self-conscious , and
adversely affected her sense of femininity , includ ing her interpersonal
relationships with men .3
[11] Dr Pienaar anticipated a 30% improvement in appearance should the plaintiff
undergo scar revision surgery on her left eyebrow.
General Surgeon
3 Medico -legal report of Dr Pienaar at page 2 under the heading “Socially”.
[12] Dr Greeff examined the plaintiff on 10 January 2018 . He recorded that sh e
suffered from very high blood pressure and complained of backaches and
headaches , particularly during cold weather . He concluded by stating that
“[f]rom a surgical perspective, the scar on her eyebrow is acceptable and I do
not think any surg ical intervention would be necessary here ”.4
Neuro logist s
[13] The plaintiff was seen by Dr Pillay on 5 December 2016 and by Dr Rosman
on 19 November 2024. Dr. Pillay observed that the plaintiff sustained facial
laceration and soft tissue injuries . Dr Pillay further noted that during the
plaintiff’s admission, she h ad no neurological complaints . Upon the
examination , Dr Pillay recorded that while the plaintiff complained of
headaches, she had no cognitive complaints , nor did she report any changes
in mood , personality , or behaviou r since the accident. She mentioned that the
headaches were relieved by medication .
[14] Dr Rosman stated that he did not get the impression of any
neuropsychological issues . Having observed that no mention was made of
headaches, Dr. Rosman cited the medic o-legal report of Dr L Hartley, a
specialist physician , wherein the foll owing is written:
“The claimant’s hypertension is not considered a complication or result of the
previous injuries”.5
[15] Dr Rosman opined that it was not anticipated that the head injury sustained by
the plaintiff would result in any significant long -term neurophysical or
neuropsychological problems, except for headaches. However, he cautioned
that “[c]onsidering the hyperte nsion, with evidence of damage to the kidneys
as a result of the hypertension, the possibility of this being a cause for the
4 Medico -legal report of Dr Greeff at para 7.
5 Medio -legal report of Dr Hartley at para 4.1.
headaches cannot be ignored.”6
[16] Taking all factors into consideration , Dr Rosman concluded that a reasonable
apportionment would attribute 50% of the plaintiff’s neurological symptoms to
the accident , and for esaw no future neurological problems.
Discu ssion and Counsel's Submission s
[17] The Court called the plaintiff to observe her in person . Apart from the scar on
her temple , no other scars were visible to the Court, as any scars on her head
were concealed by her hair . When counsel requested the plaintiff to indicate
any scars on her hands, she was unable to recall which arm bore scars;
counsel directed her that it should be on the right arm. The plaintiff responde d
in Xitsonga by saying “kuvalekile ” meaning “it is closed ” or “disappeared ”. Her
counsel was reluctant to concede that the scars were invisible , remarking “I
can see a small cut, but it is not very visible ”. Later, w hen counsel mentioned
that the plastic surgeon had noted scars on h er left chest, the plaintiff denied
having any such scars and responded in Xitsonga with “ayikona ”.
Subsequently, the Court was directed to note the abrasion on both knees.
[18] Counsel submitted that certain hypertension iss ues pre-dated the accident. I
do not believe that the severe high blood pressure, from which she is
struggling, can be linked to the accident. He further submitted that the plaintiff
sometimes suffers from h eadaches . Following a brief adjourn ment , counsel
recon sidered his submission and reminded the Court that at the time of the
accident – eleven years ago – the plaintiff experienced acute pain and social
rejection . While acknowledging that the plaintiff has since recovered well, he
argued that an award of R730 000.00 was excessive and suggested an
amount of R650 000.00. I formed the impression that counsel was w edded to
a predetermined figure regardless of the injuries.
Applicable Law
6 Dr. Rosman’s medico -legal report at para 8.6 .
[19] It is trite that when dealing with general damages “…the trial Judge has a
large discretion to award what he in the circumstances consider s to be a fair
and adequate compensation to the injured party for the sequelae of his
injuries .”7 It has been said ad nauseam that in assessing an award for general
damages , the court has a broad discretion to award what it considers to be
fair and adequate compensation. The court will generally be guided by the
awards made in comparable previous cases and will also be alive to the
tendency for awards to be higher in recent years than w ere the case
previously.8 In considering previous awards , it is appropriate to have regard to
the depreciating value of money due to the ravages of inflation. It would ,
however , be inappropriate to escalate such awards by a slavish application of
the consumer price index.9
[20] When examining comparable cases , the court must not be parrotlike in
follow ing them but must be mindful of the fact that the cases serve as a guide .
This much was stated in Protea Assurance :10
“Comparable cases, when available, should rather be used to afford some
guidance, in a general way, towards assisting the Court in arriving at an
award which is not substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which are considered
to be relevant in the assessment of general damages. At the same time it may
be permissible, in an appropriate case, to test any assessment arrived at
upon this basis by reference to the general pattern of previous awards in
cases where the injuries and their sequelae may have been either more
serious or less than those in the case under consideration ”.
[21] In Minister of Safety and Security v Seymour ,11 the court held:
7 Protea Assurance Co. Ltd v Lamb 1971 (1) SA 530 (A) (“Protea Assurance ”) at para 534H – 535A.
8 See De Jong h v Du Pisanie NO [2004] ZASCA 43 ; 2005 (5) SA 457 (SCA) at 457 D-E.
9 See AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3) SA 134 (A) and Ambrose v Road
Accident Fund [2010] ZAECPEHC 24 at para 48.
10 Protea Assurance n 7 above at 536A -B.
11 [2006] ZASCA 71; 2006 (6) SA 320 (SCA) at para 17.
“The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of a particular case
need to be looked at as a whole and few cases are directly comparable. They
are a useful guide to what oth er courts have considered to be appropriate, but
they have no higher value than that .”
[22] Whilst a conservative approach to awarding general damages would be
unfair, courts have been cautioned against a cornucopia of awards . The
award must be commensurate with injuries sustained. Hence, i n Pitt v
Economic Insurance Co. Ltd ,12 the court said:
“I have only to add that the Court must take care to see that its award is fair to
both sides - it must give just compensation to the plaintiff, but i t must not pour
our largesse from the horn of plenty at the defendant's expense .”
[23] Counsel referred to the matter of Mashigo v RAF ,13 in which t he court
undertook a comparative exercise and referred to the following cases :
a. Peter v Road Accident Fund :14 In this case , the plaintiff suffered major
injuries including a fracture of the pelvis and acetabulum. Furthermore,
he suffered two scalp lacerations and what was described as multiple
deep abrasions to the right shoulder and upper arm and over the
lumbar spine. This left him with some marked scarring o n the right arm
for which plastic surgery could achieve a 50% improvement. The
R180 000.00 general damages translates to some R 565 000.00 in
current terms.
b. Heynecke v Visagie :15 In this matter , the plaintiff was bitten by a dog in
the area of the left cheek. The damage to nerve endings resulted in his
inability to raise his left eyebrow and close his eyelids tightly. He was
left with a persistent swelling in the injured area with resultant irrit ation
12 1957 (3) SA 284 (N) at 287E -F.
13 [2018] ZAGPPHC 539 at paras 17.2 -20.3.
14 2003 (5F3) QOD 9 (BHC) .
15 1980 (3G4) QOD 102 (W).
of the eye ; excessive weeping ; and a twitching of the left eye. Although
the scarring had improved and could further be improved by plastic
surgery, severe irregular scarring remained as a “serious cosmetic
blemish ”. The award of general damages of R 2500 .00 at the time, and
it translates to R89 000.00 in present value.
c. Kobeqo v Road Accident Fund :16 In this case, a five -year-old girl was
struck by a car resulting in a degloving of her right lower leg. She
suffered a loss of right leg muscle bulk and she had extensive scarring
about which she felt very sad and “ugly”. The amount of R350 000.00
for general damages was awarded.
d. Minnie NO v Road Accident Fund :17 The plaintiff suffered a degloving
injury, coupled with a severe head injury which required repeated
surgery and caused permanent and extensive disfigurement. The
plaintiff was also left with neurocognitive deficits associated with poor
memory and language difficulties. The plaintiff was five years and 11
months old at the time of the motor accident. The large amount of
R800 000.00 granted for general damages translates to R1 717 000.00
in current terms.
e. Roberts NO v Northern Assurance Co Ltd 1964 :18 A schoolboy aged 15
described as having “a cheerful and charming personality ” was
involved in a debilitating accident that resulted in a severe brain injury.
This led to a complete reversal of his personality, traumatic epilepsy,
and rendered him a danger to himself and others —necessitating
lifelong confinement in a men tal institution. He also suffered gross
facial and other disfigurement. The award for general damages of
R30 000.00 at the time translates to some R3 608 000.00 in current
terms.
16 2013 JDR 2270 (GNP).
17 2012 (6A4) QOD 82 (GSJ).
18 (1A4) QOD 573 (D) .
f. Van Rensburg v AA Mutual Insurance Company Ltd:19 In this matter,
the plaintiff suffered various fractures to his knees and left foot. She
was crippled for life and was still on crutches after three years.
Furthermore, s he suffered various scarring which constituted a real
degree of disfigurement , causing some self -cons ciousness and
possibly affecting her chances of remarriage. The general damages of
R12 000.00 at the time translates to R 1 246 000.00 in the current
value .
g. In Damba v AA Mutual Insurance Association Ltd ,20 a boy aged 7 ½
years suffered fractures to both his femurs with resultant complications.
He was left walking with a slight limp and had scarring on his right
thigh. The general damages award of R8000 .00 at the time translates
to R2 85 000.00 in current terms .
h. Noble v Road Accident Fund :21 In this matter, scarring resulted from a
combination of serious injuries, including head and brain trauma,
fractures of the right femur and tibia, and fractured patellae in both
knees, all of which were accompanied by extensive associated
scarring. Additional scarring on the right thigh resulted from skin grafts
taken to treat the right lower leg. The court awarded general damages
in the amount of R600 000.00, which translates to approximately
R1 226 000.00 in current t erms.
i. Nxumalo v SA Eagle Insurance Company Ltd and Others :22 In this
case, the scarring involved an extensive degloving injury of the right
lower limb from foot to groin leaving the plaintiff with se vere scars on
the thigh and lower leg and permanent deformity and disability. The
scarring to the lower leg involved 80% of the circumference with all skin
and subcutaneous tissue having been lost and subsequently replaced
by skin grafts but leaving particularly unsightly scarring which was
19 1969 (2E3) QOD 40 (E) .
20 1980 (3E3) QOD 251 (E) .
21 2011 (6J2) QOD 54 (GSJ) .
22 1995 (4G5) QOD 1 (N) .
hyper -pigmented and irregular. The amount of general damages of
R 90 000.00 translates to R 477 000.00 in current terms.
j. Phiri and Another v Shield Insurance Company Ltd:23 A four -year-old
boy was struck by a bus , which tore all the muscles from one of his
legs, resulting in significant scarring . In addition to o rthopaedic
interventions, subsequent skin graft operations left him with extensive
scarring. Although the award for general damages was originally made
in p ounds, it was converted to R3 250.00 which translates to
approximately R353 000.00 in current terms .
k. Union and South West Africa Insurance Co Ltd v Humphrey :24 A 15 -
year-old girl, injured while riding pillion on a motorcycle, sustained
fractures to the tibia and metatarsals, along with severe scarring to her
lower leg. In addition to orthopaedic interventions, she underwent
further surgeries, including one for sk in grafting. The scarring on her
foot was described as a definite cosmetic blemish. The award for
general damages of R8 500.00 at the time translates to approximately
R374 000.00 in 2024.
l. Julie v Winter :25 In this case, hot tar was poured over the plaintiff’s
head, chest, shoulder, and arms during an assault, resulting in severe
burns. In addition to the intense shock suffered, the plaintiff required
three skin grafts but was nevertheless left with extensive scarring and
damaged skin. The award of £ 400.00 (equivalent to R800.00 at the
time) translates to approximately R115 000.00 in current terms.
m. Nconywa v Cantor :26 In this matter , a 12-year-old girl sustained deep
burns to her legs, covering approximately 15% of her total body surface
area, after a tin containing a highly flammable substance was thrown
into a fire and exploded. She was hospitalised for two months, during
23 1967 (1E6) QOD 780 (E) .
24 1979 (3E5) QOD 58 (A) .
25 1955(1D3) QOD 567 (C) .
26 1983 (3G2) QOD 475 (SE) .
which she underwent four operations, including three successive skin
graft procedures. Although she made a good recovery, t he scars
remained permanent. The general damages awarded in the amount of
R7 000.00 at the time translate to approximately R168 000.00 in
current terms. .
n. Mofokeng v Fedgen Versekering Beperk :27 A 17 -year-old male scholar
sustained severe third-degree burns covering the entirety of his left
cheek, neck, both shoulders, and eyelids. His left ear was completely
burnt off, necessitating several reconstructive procedures. He
underwent six skin graft operations and was left with permanent,
repul sive disfigurement, including permanent hair loss over the affected
areas. The amount awarded for general damages was R40 000.00 at
the time, which translates to approximately R275 000.00 in current
terms.
o. Oosthuizen v Homegas (Pty) Ltd :28 A 46 -year-old manager of a gas -
selling business sustained severe burns to his face, scalp, both ears,
both hands, the left side of his torso, upper back, and left arm due to
the explosion of a gas cylinder. His initial life -threatening condition
required i ntensive care treatment. The subsequent treatment, which
was extremely painful, involved daily submersion in a bath to remove
bandages underwater. He was left with gross permanent disfigurement,
particularly to his left hand (which was left in a claw -like position), his
right hand, and ears. The amount awarded for general damages was
R45,000.00 at the time, which translates to approximately R465,000.00
in present terms.
p. Graham v Administrator Transvaal :29 The plaintiff, a patient in a
provincial hospital for an aorta graft operation, suffered third -degree
burns to his lower back and buttocks due to the negligent use of a
27 1992 (4G2) QOD 11 (T) .
28 1989 (4G2) QOD 1 (0) .
29 1982 (3G2) QOD 336 (T) .
heating apparatus. These burns required three successive skin graft
operations. Subsequently, his condition progressed, leading to the
amputation of one leg and a high likelihood of becoming bedridden. He
was left with a permanent aesthetic defect. The amount of R9 000.00
awarded as general damages at the time translates to approximately
R243 000.00 in present terms.
q. Buys and Anot her v Lennox Residential Hotel :30 In this matter, a newly
married woman sustained burns to the lower part of her body after the
hot water tap detached while she was in a hotel bath. Thirty -five
percent of her body was left covered in second -degree burns. S he was
left with scars and areas of discolouration, some of which were visible,
resulting in a marked change in her personality. She no longer wore
dresses and refused to be seen in a bathing costume. The amount of
general damages awarded, R6 000.00 at the time, translates to
approximately R275 000.00 in present terms.
Analysis and conclusion
[24] Recently, i n the matter of De Meyer v Road Accident Fund ,31 the Full Court of
this Division addressed the issue of general damages in relation to
disfigurement . In that case , the court held that the plaintiff would possibly
require surgery due to the disfigure ment of the foot . The court awarded a sum
of R325 000.00 for general damages.
[25] In casu, eleven years have passed since the accident, and the plaintiff ’s scars
are inconspicuous, save for the one on her temple. The medico -legal report of
the plastic surgeon is almost seven years old. It is of little assistance to the
Court, even the plaintiff contested the presence of a scar on the breast
mentioned by the plastic s urgeon. It is mind -boggling that counsel asked the
Court to factor in the issue of hypertension. Having considered that she
suffers from headaches and , as a female, she might have endured some
30 1978 (2G2) QOD 836 (C) .
31 [2025] ZAGPPHC 307 .
shame when the scars on her face were still visible, I am of the view that the
sum of R350 000.00 is appropriate under t he circumstances .
Costs
[26] This matter is neither complex nor are the papers voluminous, and the
amount involved is not substantial relative to the overall context. Counsel’s
request for scale C is unmeritorious. Moreover, counsel incorrectly perceives
the test as being based on seniority; the correct approach to Rule 69 is as
follows:
“The court must award the scale , based on complexity and the amount of the
claim. A complex and voluminous matter will for instance be on scale C.”32
Similarly, to the issue of general damages , costs are within the discretion of
the court. When dealing with costs and general damages , it is trite that a court
exercise s what is called : narrow discretion , sometimes called discretion in the
true sense .
Order
1. The application in terms of Rule 38(2) is granted.
2. The defendant is orde red to pay the plaintiff the amount of R350 000.00
(Three hundred and fifty thousand rands) in respect of general damages , by
paying into the plaintiff’s attorneys trust account with account number 0[...] at
Standard Bank White River, within 180 days from the date hereof, during
which period interest shall not be payable.
3. The defendant is ordered to capture the payment on the ‘RNYP’ list within
30 days of receipt of the Order.
32 Pretoria Attorneys Association “ Memorandum To Our Members – Important Amendments To High
Court Rules Taking Effect Tomorrow 12 April 2024 ” 11 April 2024 at para 3.1.3.
4. The defendant will furnish the plaintiff with an undertaking in terms of
section 17(4)(a) of Act 56 of 1996 to pay the costs of the future
accommodation of the plaintiff in a hospital or nursing home, or treatment of
or rendering of a service o r supplying of goods to her arising from injuries
sustained by her in a collision which occurred on 08 February 2014 after the
costs have been incurred.
5. Should the defendant fail to make payment as set out in paragraph 2 above
then, in this instance, the Defendant shall be liable for payment of interest,
calculated from 15 days after the date hereof, at the tempore morae rate.
6. Save for the trust account banking details as set out in paragraph 2, the
defendant shall make no further conditions for payment of the amount
contained in paragraph 2.
7. The defendant shall pay the plaintiff’s taxed or agreed party and party costs
on the High Court scale to date, subject to the taxi ng master’s inherent
discretion , and such costs shall include the following:
a. The costs of plaintiff’s counsel, including heads of argument, on scale
B;
b. The costs of all medico -legal and addendum reports, joint and draft
joint reports served on the defendant, including costs of any special
medical investigations;
c. The qualifying fees of the experts referred to in paragraph (b) above
(for the reading of the reports of the other experts including the
attendance and costs of copies of providing such reports to the
experts);
d. The reasonable costs incurred by and on behal f of the plaintiff, as we ll
as the costs consequent to attending the medico -legal examinations .
8. Should the defendant fail to make payment of the taxed or agreed costs within
180 days, then the defendant will be liable for payment of interest on the
taxed costs calculated 15 days from the date of the order.
9. Loss of earnings is postponed sine die.
____________________________
M.P. MOTHA
JUDGE OF THE HIGH COURT
PRETORIA
Date of Hearing: 28 February 2025
Date of Judgment: 29 April 2025
APPEARANCES:
For the Plaintiff : Adv G. Lubbe
Instructed by : Schutte de Jong Attorneys
For the Defendant : None