SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION , BLOEMFONTEIN
Reportable/ Not Reportable
Case no. : 4136/2022
In the matter between:
IRIS JONELDINE VAN STADEN Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Coram: Opperman J
Heard: 10-11 September 2024; h eads of a rgument filed 20 September
2024
Delivered : 3 April 2025. This judgment was handed down in court and
electronically by circulation to the parties’ legal representatives by email and
release to SAFLII. The date and time for hand- down is deemed to be on 3 April
2025 at 15h00
Summary : Claim – merits – motor vehicle accident – general damages .
ORDER
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1. The defendant shall pay the plaintiff an amount of R 700 000-00 (seven
hundred thousand rands) for general damages suffered as result of a motor
vehicle accident which occurred on 27 February 2021.
2. The amount in para 1 above shall be payable within 180 (one hundred and
eighty ) days of date of this order into the account of the plaintiff's attorneys
with the following particulars:
Peyper Botha Attorneys
Name of account: PEYPER & BOTHA ATTORNEYS INC.
BANK: FNB
Account number: 6[…]
Branch code: 241 138
Reference number: VP0130
3. The defendant shall pay the plaintiff's taxed or agreed party and party costs.
JUDGMENT
Opperman J
[1] On 30 August 2022 summons was issued by the plaintiff wherein she ,
inter alia , claimed for general damages suffered as result of a motor vehicle
accident that happened on 27 February 2021. She claimed R1 000 000. 00 (one
million rands) for general damages. After evidence was adduced and the law
considered, she reduced the claim to R700 000.00 (seven hundred thousand
rands).1 This is the only issue that lies before court now.
1 Paragraph s 118 and 119 of the heads of argument for the plaintiff dated 19 September 2024.
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[2] On the day when the incident happened, the insured driver skipped a red
traffic light, drove faster than the reasonable speed expected in the
circumstances , failed to keep a proper lookout and collided with the plaintiff
crossing the street as a pedestrian. The plaintiff sustained a left leg injury, left
knee injury, pelvis/hip injury, soft tissue injury of the lumbar spine with residual
pain and internal derangement of the left knee with residual pain and possible
meniscal tear.
[3] Judgment was handed down on 14 March 2024 after trial whereby the
defendant was held liable for 100% of the plaintiff’s proven damages , the
defendant was ordered to pay the plaintiff an amount of R1 073 038.00 for loss
of earnings and the defendant was ordered to furnish the plaintiff with an undertaking in terms of s 17(4)( a) of the Road Accident Fund Act 56 of 1996.
The issue of general damages was separated and ordered to stand down for later
adjudication in terms of r ule 33(4). On request of the plaintiff, it was ordered
that the matter be dispose d of without hearing oral argument.
[4] On the date of hearing of this matter, the at torney appearing on behalf of
the defendant formally withdrew from the matter due to a lack of instructions.
The defendant , therefore , did not take part in the tr ial proceedings and the matter
was essentially undefended.
[5] The plaintiff was called to testify on the g eneral damages suffered as a
result of the accident. It was furthermore, at the hearing of this matter, on
application and by order of the court , ruled that the reports of the occupational
therapist and orthopaedic surgeon be admitted into evidence . Both were called
as expert witnesses and testified at the previous hearing of this matter on 13 to
14 March 2024. The transcript of the proceedings held on 13 March 2024 also
formed part of the evidence adduced.
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[6] The plaintiff ’s testimony showed that the injuries suffered, and the
sequelae thereof are the following:
a. Daily and constant pain in her lower back and recurring cramps in her left
knee;
b. the pain she experiences daily is exacerbated when either sitting or
standing for extended periods;
c. she cannot drive for long periods before the pain reaches a point of being
unbearable;
d. she is forced to consult doctors, physiotherapist and biokinetics regularly
to manage her condition;
e. she was prescribed chronic pain medication in an attempt to address the
pain she experiences. Limited success in regulating the pain she suffers daily
was obtained;
f. she is allergic to and on occasion experiences adverse side effects from
the medication for pain management prescribed. The better alternative causes
her to experience drowsiness and nausea, impacting her day- to-day activities.
Notwithstanding having been prescribed specific doses of the chronic pain medications, she has on occasion felt the need to take an additional dose to deal
with the pain. Due to the pain in her left knee and lower back as well as the
medication , she cannot drive a motor vehicle sa fely.
g. She is employed in the South African Police Services (SAPS) and holds
the rank of sergeant. After the accident, she is unable to perform operational
duties in her employment. S he particularly thrived during operational duties. She
is currently only able to perform administrative duties and has been so deployed. h. She was a member of the SAPS netball team and would regularly
participate in sport activities hosted by the SAPS. She can no longer participate in these activities.
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i. Prior to the accident, she used to be an avid hiker and would regularly go
on hikes with her friends. She had to cease from partaking in this activity too.
This is due to the pain she experiences in her lower back and left knee;
j. she used to be a very physically active person who exercised daily and
visited the gym regularly. Her exercise activities are now restricted to only those
exercise plans provided to her by medical practitioners which are intended to
address the injuries she had suffered in the accident and the pain resulting
therefrom.
k. Her personal relationships have been impacted. She used to be a very
outgoing and social person. As a result of the injuries and the persistent pain she
suffers, she no longer participates in as many social gatherings which has
resulted in her losing contact with many of her friends. She avoids social
gatherings since she believes that she may be perceived as a burden to her
friends due to her being unable to keep up with them.
l. Her family is primarily resident in Kimberl ey, and she cannot visit them
as regularly as she used to prior to the accident , since it would require her to
drive to Kimberl ey which is difficult for her due to the pain she experiences
when driving. Her experience is that her family appears to be particularly
worried about her wellbeing due to her not having as much contact with them
and that she is saddened by the fact that her mother, in particular , appears to be
concerned about her. She relies on the assi stance of others, particularly one of
her close friends and her sister, and she believes it is unfair to those who assist her to have to rearrange their lives to help her.
m. The plaintiff testified that the pain is sometimes simply ‘too much to
handle ’ and she is constantly in a state of anxiety and has been diagnosed to
suffer from anxiety. She has experience d panic attacks due to her increased
anxiety levels. This exacerbates difficulty sleeping.
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[7] The occupational therapist testified in her oral testimony that the
plaintiff ’s employment duties prior to the accident , as it were , would only
aggravate her symptoms had s he continued to perform said duties. Lifting and
carrying loads aggravated the pain the p laintiff experiences in her lower back
and left knee. The witness confirmed that the plaintiff can no longer participate
in recreational sporting activities and exercise. P ain management intervention is
recommended for the p laintiff which would involve recurring visits to
occupational therapists, physiotherapists and a practitioner in biokinetics. As per
para 6.2.3 of her report , the occupational therapist noted that the p laintiff ’s
quality of sleep has been affected. This coincides with the p laintiff's testimony
that the pain in her lower back and left knee has caused her difficulty in
sleeping. The plaintiff has become less sociable after the accident and indicated
that she prefers to stay indoors, is anxious in crowds and is easily irritable .
During the evaluation she presented with certain mood changes due to the
accident -related limitations. The occupational therapist did , however, refer the
plaintiff to a clinical psychologist for a detailed assessment . The occupational
therapist opines that the implementation of a holistic intervention will likely
improve functional capacity to an extend and that the p laintiff will benefit from
the use of assistive devices and by continual adherence to joint and spinal protecting principles.
[8] The orthopaedic surgeon testified that he foresees the possibility that the
injury to the p laintiff's knee may require further intervention. This involves an
additional surgical procedure which may require a hospital stay and a healing
period. There is a possibility that the surgery might worsen the plaintiff ’s
situation . He predicts that the procedure may have to be repeated at a later stage
which would again involve a recovery period. Such further complications will,
undoubtedly, lead to further pain and suffering for the p laintiff and will have a
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negative impact on her ability to enjoy the amenities of life and may lead to
further disability for the p laintiff.
[9] Since the d efendant has failed to participate in the hearing on general
damages, the evidence for the plaintiff stands uncontested. No evidence has
been presented which would refute the evidence presented by the plaintiff. The
evidence cannot be faulted and the case for the plaintiff has been proven as
claimed.
[10] In the matter of RAF v Marunga2 it was held that in cases in which the
question of g eneral damages arose, a t rial court had a wide discretion to award
what it considered to be fair and adequate compensation to the injured party.
There is no hard and fast rule of general application requiring a trial court to
consider past awards, although the c ourt might derive some assistance from the
general pattern of previous awards.
[11] The adjudication of quantum is primarily based on the specific merits of
the case. Awards granted in similar cases is a good compass.3 It was ruled in the
matter of Pitt v Economic Insurance Company Ltd4 that an award for general
damages must be fair to both sides.
‘It must give just compensation to the plaintiff but must not pour out largesse from the horn of
plenty at the defendant's expense.’
2 Road Accident Fund v Marunga (144/2002) [2003] ZASCA 19; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164
(SCA) (26 March 2003) .
3 Cases such as Mashigo v Road Accident Fund (2120/2014) [2018] ZAGPPHC 539 (13 June 2018) , Protea
Insurance Company v Lamb 1971 (1) SA 530 (A) , Mseleku v Road Accident Fund (72406/2016) [2023]
ZAGPPHC 1208 (19 September 2023) , Mudau v Road Accident Fund [2023] JOL 64399 (GP) , Mseleku v
Road Accident Fund (72406/2016) [2023] ZAGPPHC 1208 (19 September 2023) , Cassim and Others v Road
Accident Fund (2005/15914) [2022] ZAGPJHC 763 (23 September 2022) , April v Road Accident Fund
(2338/2018) [2021] ZAFSHC 206 (15 September 2021) , and Radebe v Road Accident Fund (14645/17) [2019]
ZAGPPHC 475 (8 August 2019) referred to by counsel for the plaintiff provided relevant guidance.
4 Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) 287E -F. Also see Kampi v Road Accident Fund
(5216/2021) [2024] ZAGPPHC 790 (12 August 2024) .
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[12] This court is convinced that given the above , an amount of R700 000.00
(seven hundred thousand rands) will be just and equitable . Costs will follow the
cause and on the scale of party and party.
Order
[13] In the result, the following order is made:
1. The defendant shall pay the plaintiff an amount of R 700 000-00 (seven
hundred thousand rands) for general damages suffered as result of a motor
vehicle accident which occurred on 27 February 2021.
2. The amount in para 1 above shall be payable within 180 (one hundred and
eighty) days of date of this order into the account of the plaintiff's attorneys
with the following particulars:
Peyper Botha Attorneys
Name of account: PEYPER & BOTHA ATTORNEYS INC.
BANK: FNB
Account number: 6[…]
Branch code: 241 138
Reference number: VP0130
3. The defendant shall pay the plaintiff's taxed or agreed party and party costs.
Opperman J
Appearances
For applicant : JJ GRUNDLINGH
Bloemfontein
PEYPER & BOTHA Attorneys
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Bloemfontein
For respondent: The State Attorney: Free State
Bloemfontei n