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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case Number: 5465/2021
In the matter between
NOLUVUYO SIMAYILE -SIGIJIMI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
Date of hearing: 12 March 2025
Date of judgment: 31 March 2025
BHOOPCHAND AJ:
1. The Plaintiff is a 36 -year-old female. She was involved in an accident on 25
September 2019 when a motor vehicle collided with her. She was a pedestrian. The
Defendant is the statutory body established under the Road Accident Fund Act, 56 of
1996 (‘the RAF Act’) to pay compensation for loss or damages wrongfully caused by
driving motor vehicles.
2. The unresolved issues included the issue of liability and the Plaintiff’s claim
for damages. The parties agreed to a truncated trial under Rule 39(20). The Court
would hea r testimony on the issue of liability. If Defendant were found liable, it would
determine the Plaintiff’s claim for general damages based on the papers and the
written arguments submitted by the legal representatives. The expert reports relied
upon would b e supported by the Rule 38(2) affidavits in place of the experts
testifying.
LIABILITY
3. The Plaintiff’s testimony was brief. She remembered crossing the R300 in
Mitchell’s Plain and nothing else. She broke down in the witness box, and any
attempt to elicit any further information came to nought. Ms Yanga Koyo (‘Koyo’) was
then called on behal f of the Plaintiff. She testified that she and two companions, one
of which was the Plaintiff, were walking to Westgate Mall from Samora Machel. It
was shortly after midday. The three reached the dual-lane Vanguard Expressway .
They were walking on the pave ment. The third member of the trio was Nosipo , who
had since passed away. They were familiar with the road and had walked it many
times.
4. A minibus taxi heading northwards, i.e. away from Mitchells Plain , turned
against the red light, intending to proceed southwards in the direction it had
traversed. The trio were walking a short distance away from the robot. Koyo heard
the sound of tyres squealing , and the taxi knocked the Plaintiff. The Plaintiff was on
the pavement. The two others escaped the collision. The taxi sped off. The Plaintiff
did not lose consciousness. She phoned the emergency services for assistance. The
owner of the vehicle arrived. She accompanied the plaintiff to the police station in
Samora Machel. They refused to assist. They then went t o Mitchell’s Plain Hospital.
The Plaintiff received attention. Koyo left the hospital at about 6 pm. The Plaintiff
spent six days in hospital.
5. Koyo underwent cross -examination. She testified that the Vanguard
Expressway is a busy road in the mornings and evenings but not busy during the
day. The trio were walking with their backs to the traffic. They could not see the traffic
behind them. They were walking to the left of the yellow line. The Plaintiff was hit on
her right shoulder and suffered a ‘hole’ in the head on the left side. Blood oozed from
the head and leg injuries. The taxi owner met them at the police station. None of the
trio were walking on the road surface. The pavement she referred to was not made
of concrete blocks but had a concrete pathwa y. Nosipho and the Plaintiff walked on
the concrete path, while she walked on the gravel, away from the pathway. The gap
between the concrete and the yellow line was tarred.
6. The Court attempted to establish the layout of the pavement relative to the
road surface. The walking area alongside the road was slightly elevated , and the
yellow line was less than a metre away from where the trio were walking .
7. The Plaintiff raised the usual grounds of negligence encountered in road
accident claims, such as failin g to keep a proper lookout and driving at an excessive
speed, etc. She also pleaded that the driver of the insured vehicle made a U -turn
when it was dangerous and/or inopportune to do so. The evidence supported the
latter ground, but it was not a ground o f negligence on which the Plaintiff could rely .
The driver changing direction against a red robot did not lead to the accident. The
Plaintiff led evidence that the cause of the accident was the driver mounting the
pavement and colliding with her off the tarred surface of the roadway . That would
constitute evidence of negligence unless controverted by the Defendant . The
problem is that Plaintiff did not plead this material fact .
8. The pleadings are intended to outline the material facts on which t he plaintiff
relies for their claim. Courts often emphasise the importance of consistency between
the pleaded case and the evidence presented during the trial. Suppose a plaintiff's
testimony introduces a fact not explicitly stated in the particulars of cl aim, such as
the driver mounting the pavement and striking her. In that case, the court may
consider this evidence if it aligns with the broader allegations of negligence. The
grounds of negligence , cast generally, which include the driver's failure to tak e
adequate measures to avoid the accident, may rescue the plaintiff’s case in this
instance . This omission could have resulted in Plaintiff being non -suited unless she
applied to amend her particulars without prejudice to Defendant .
9. It emphasises the need for the legal representatives to ensure that the case
they intend to lead is properly reflected in the pleadings . The onus was always on
the Plaintiff to prove her case. The purpose of pleadings is to inform the opposing
party of the case they must meet and to assist the court in clearly and precisely
determining the factual and legal issues in dispute . However, deviations may be
permitted if they do not result in procedural unfairness .1 The Defendant appreciated
the evidence , and no objections were raised. The Defendant interrogated the
Plaintiff’s witness about her testimony that placed the trio off the road when the
collision occurred. In the circumstances , the Court accepts the evidence as there is
no discernible prejudice to the Defendant.
10. Defendant pleaded, among other things, that Plaintiff had positioned herself
on a ‘trafficable surface’ of a public road at a time when it was unsafe, inopportune,
and/or dangerous to do so. Defendant pleaded that the insured driver was in the
process of reversing when Plaintiff crossed the road in the path of the (behind?)
vehicle. The Defendant also pleaded for an apportionment of liability.
11. The Defendant argued th at Koyo was uncertain about how far the yellow line
was from the edge of the pavement and that she could not confirm whether Plaintiff
was walking on the road surface or within the emergency lane . The latter does not
accord with the evidence. Although Koyo was insecure about the distance fr om the
concrete pathway to the yellow line, her evidence consistently placed Plaintiff off the
road surface. The defendant did not seriously raise their defence that the Plaintiff
was hit by a reversing vehicle or make ou t a case for apportionment of liability. The
Defendant did not call any witnesses.
12. The Plaintiff argued that a driver is required to exercise reasonable care
towards pedestrians. A motorist is prima facie negligent when they strike a
1 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
pedestrian on a sidewalk.2 A pedestrian on a sidewalk , which is allocated for their
use, is not obliged to look and see whether a vehicle is approaching that may collide
with them.3 A motorist who permits any part of their vehicle to protrude onto the
sidewalk would be prima facie negligent . The vehicle colliding with a pedestrian on a
sidewalk is in a position where it has no right to be.
13. In the circumstances, the Defendant is liable for the Plaintiff’s damages.
GENERAL DAMAGES
14. The Plaintiff sustained injuries to her head, right lower limb, and left shoulder.
She suffered a fracture of her right supra -orbital wall and an injury to the trigeminal
cranial nerve causing neuralgia 4. The Plaintiff sought R1 250 000 under this head of
damages but submitted that an award of R800 000 would be suitable. The
Defendant contended for an award of R 400 000.
15. The Plaint iff filed seven expert reports in support of this claim . They included a
Neurologist, Orthopaedic Surgeon , Ophthalmologist, Clinical Psychologist with an
interest in neurops ychology, Occupational Therapist, and Speech Therapist. The
Defendant did not file any expert reports.
16. The Plaintiff's appointed neurologist asses sed the Plaintiff in October 2020.
She reviewed the hospital notes , which indicated that the Plaintiff was conscious on
admission . A computerised tomography scan (CT scan) suggested a supraorbital
fracture. She was diagnosed on discharge , five days after admission, with a diffuse
brain injury.5 The Neurologist described the Plaintiff’s emotional state during the
assessment . She broke down and cried at least twice during that consultation. Some
2 Mosaval v Minister of Posta and Telecom 1978 (1) SA 369 (C ).
3 Mashigo v Santam Insuransie Maats kappy Bpk. 1973 (1) SA 156 (A)
4 rigeminal neuralgia causes sudden, intense facial pain like an electric shock or stabbing
sensation. The pain typically a ffects one side of the face and can be triggered by everyday
activities, such as brushing one’s teeth, eating, or even a gentle breeze. The trigeminal nerve is
one of 12 cranial nerves that connect the brain to the head and neck.
5 A diffuse brain injury affects multiple areas of the brain rather than a single specific spot. It can
occur when the brain is shaken or jolted inside the skull, such as during a car accident or a fall.
This movement can stretch or tear the brain's nerve fibres, called axons, which are responsible
for sending signals between different parts of the brain. As a result, communication within the
brain can be disrupted, leading to a wide range of symptoms
of the other experts noted a similar reaction . The same situation repeated itself in
Court four years later , and proceedings had to be adjourned. The reaction is
inexplicable . The Neurologist suspected that the majority of the Plaintiff’s symptoms
are related to depression and anxiety rather than true cognitive fallout, given the
Plaintiff’s ‘essentially normal’ CT brain scan. The expert documented chronic
headaches and backache , right eye tiredness, and multiple somatic complaints6, for
which the Plaintiff resisted medication. She ha d symptoms related to her right knee.
The Plaintiff had a mildly disfiguring scar on her forehead. The Neurologist elicited
hypersensitivity over the distribution of the fifth cranial nerve in its branches and
stated , rather profoundly, that she believed i t to be a genuine finding.7 The expert
concluded that the Plaintiff can perform her daily activities of living adequately. The
Plaintiff has reached maximum medical improvement and should benefit from
psychological intervention.
17. The Clinical Psychologist found , through testing, that the plaintiff’s attention
and concentration results were variable. Her motor dexterity was impaired, and she
had difficulties initiating speech. Her verbal memory was influenced by distraction
and delay , but her visual memory was intact. Her visuospatial and perceptual
abilities were intact. On testing executive functioning, the Psychologist noted that the
Plaintiff was distract ed by pain. The expert found that the executive testing was
predominantly impaired. Although drawing a correlation between the severity of the
brain injury and anticipated neuropsychological fallout, the expert suggested that the
fracture to the Plaintiff’ s orbit may well indicate damage and some shearing to the
brain neurons. She accepts that the Plaintiff’s symptoms may well be a result of
some mood disorder but that the sequelae of the perceived brain injury co -exist. She
goes on to say that the genesis of the behavioural, cognitive and emotional changes
is academic and must be accepted as a result of the accident. She then diagnosed
the Plaintiff with Major Depressive Disorder and recommended both psychiatric
6 When a doctor mentions "multiple somatic symptoms," th ey are referring to physical symptoms
that a person experiences, such as pain, fatigue, or shortness of breath, which may not always
have a clear medical explanation. These symptoms can occur in different parts of the body and
might be linked to a conditio n like somatic symptom disorder. In such cases, the focus is often
on how the person reacts to these symptoms —such as excessive worry, distress, or difficulty
functioning —rather than the symptoms themselves.
7 The fifth cranial nerve is the trigeminal ne rve. It is responsible for both sensory and motor
functions. It provides sensation to the face, including areas like the forehead, cheeks, and jaw.
It also helps control the muscles involved in chewing .
assessment and psychological interventions. She concluded by stating that
significant improvement from a neuropsychological perspec tive was not expected .
The Psychologist’s assessment was performed in May 2021.
18. The Occupational Therapist was more forthright. She referred to the Plaintiff’s
decreased resilience to pain and suspected a psychological component to the
Plaintiff’s reaction. The expert qualified the statement by saying that it was not
attributed to malingering or a conscious attempt to magnify her symptoms, but rather
part and parcel of her symptomatology.
19. In her second report , following an assessment on 25 June 2024, the expert
noted that the Plaintiff was more composed than previously , able to provide a clear
account of her current situation , and more concise in her responses . The Plaintiff
received treatment at her local clinic and a general practitioner. She received
analgesia , which she took daily and used anti -inflammatories occasionally . She
began a gentle exercise regimen at her local g ymnasium . She has received
counselling from her pastor since her divorce. She has lost weight, and her self -
esteem has improved. She accepted her facial disfigurement and wanted to
encourage others to do the same. The birth of her third child had given meaning to
her life , helped her remain positive, and stabilised her mood. The Plaintiff’s self -
report included a myriad of somatic and functional symptoms.
20. The Plastic Surgeon provided a schematic drawing of a face , illustrating the
distribu tion of the right supraorbital and supratrochlear nerves and depicted the area
of anaesthesia to the left of the midline . He initialled the drawing. It is unclear as to
why this drawing was included in the report . The area of anaesthesia is on the
opposite side of the face to where the injury to the orbit occurred. The Plastic
Surgeon identified the scar from the laceration to the forehead and the slight
asymmetry of the Plaintiff’s face that could be surgically revised. He did not
recommend any surgical in tervention for the knee, leg, or shoulder. He drew a
correlation between facial injuries and psychological symptoms.
21. The Ophthalmologist found no visual disability from the right orbital wall
fracture.
22. The Speech Therapist found word retrieval deficit , poor cognitive lexical
search strategies and executive dysfunction, disturbances of complex attention ,
mental tracking difficulties and po or verbal working memory, preserved ability to think
abstractly, poor verbal selective attention and difficulties in sustaining auditory
attention, compromised complex listening comprehension skills , the latter forming
part of the Plaintiff’s receptive communication difficulties , central auditory dysfunction
and impaired conversational skills. The Speech Therapist considered it highly
probable that the Plaintiff’s expressive and receptive communication impairments are
attributable to traumatic brain inju ry sustained in the accident. The expert, like the
Psychologist , acknowledged the Plaintiff’s depressive symptoms but believed that
the Plaintiff’s communication difficulties likely and understandably contributed to her
disturbances of mood , her irritabili ty, and her social withdrawal. The Speech
Therapist assessed the Plaintiff in May 2021.
23. The Speech Therapist provided an addendum report based on a follow -up
assessment on 26 September 2024. She elicited the history that the Plaintiff’s
husband had deser ted her, and she was filing for a divorce. She gave birth to
another child two years after the Speech Therapists initial assessment. The Plaintiff
obtained work for one and a half months in 2022. The Plaintiff ha d enrolled for a
sewing course , which she aim ed to complete in October 2024. The Therapist
concluded after her second assessment that the Plaintiff’s accident -related sequelae
about speech had remained the same. The expert does not refer to whether the
Plaintiff sought psychiatric or ps ychological treatment.
24. Two Orthopaedic Surgeon s assessed the Plaintiff . The Plaintiff does not seem
to rely on the first expert who assessed her in November 2021 . She provided a more
recent report from another Orthopaedic Surgeon dated 16 September 2024 . The
second expert agreed with the findings made by the first expert , who diagnosed soft
tissue injuries to the lumbar spine, right shoulder, and right knee, all of which would
be amenable to medication . The fir st expert assessed the Plaintiff’s whole -person
impairment relating to her soft tissue injuries to be 6%.8 The second Orthopod found
the examination of the spine, knees and shoulder to be normal.
25. The Defendant submitted three cases for the Court’s consi deration . None of
the victims in those cases suffered a brain injury or psychological symptoms . The
Plaintiff could not source any comparable awards.
EVALUATION
26. The evidentiary base supporting the claim for general damages is
confounding. As a starting point, the Court observed the Plaintiff’s emotional reaction
when asked questions relating to the accident. The hospital notes confirm a head
injury with bruising of the right forehead that required suturing an d a fracture of the
right orbital wall. The Neurologist did not grade the brain injury except for recording
that the hospital diagnosed a diffuse injury without an open intracranial wound. She
referred to the CT scan , which was normal except for the fractu re of the orbit wall .
The Ophthalmologist ’s examination indicated normal visual functioning.
27. The Neurologist suspected the majority of the Plaintiff’s symptoms to be
related to anxiety and depression rather than true cognitive fallout. The expert
conducted an examination of the Plaintiff’s gait. She described it as follows: “ There
was extremely exaggerated impairment whilst doing tandem gait , unable to keep her
balance, wobbling dramatic ally all over the place. This is likely functional. ”9
28. The test results of the Clinical Psychologist and Speech Therapist suggest
florid neuropsychology deficits and communication problems. They a cknowledged
the Neurologist’s opinion but attribute d the deficits elicited to the sequelae of organic
8 Whole Person Impairment (WPI) is a way to measure how much an injury or condition has
permanently affected a person’s ability to function in daily life. It's expressed as a percentage,
with higher percentages indicating more severe impairments. There are s pecific guidelines to
assess WPI e.g the type of injury, its impact on different parts of the body, and whether the
condition has stabili sed. This measurement is often used in legal or insurance contexts to
determine compensation for injuries. It forms par t of the initial assessment in road accident
compensation to determine whether an accident victim ’s should receive compensation for
general dama ges.
9 The description of a response as being ‘functional’ means that it is not due to a structural or
organic problem . In this case, the nervous system is not working properly, but there is no
detectable damage or disease causing the symptoms.
brain injury . Neither of them considered whether a mood disorder could influence
their test results , although they noted pain and distraction whilst testing. Neither
suggested re-testing after ps ychiatric or psychological intervention. The Defendant
did not appoint any experts. The only suggestion that the Plaintiff may have residual
symptoms is her reaction in the witness box. She let out a loud wail and began
crying once the topic of the acciden t was broached . There is no indication that she
has sought psychological or psychiatric interventions over the years or that she is on
any psychotropic medication.
29. In at least two of the three updated reports, there has been documented
improvement in the Plaintiff’s social and mental functioning. The Orthopaedic report
excludes sequelae from the accident -related injuries to the right shoulder, knee, and
lumbosacral spine. A thread of optimism regarding the Plaintiff’s general functioning
runs through the Occupational Therapist’s second report, although the conclusions
are guarded. There is no recent neuropsycholog y report.
30. The Court accepts as proven that the Plaintiff suffered a brain injury that
should not have caused cognitive fallout, disfigurement from her facial scarring and
mild asymmetry of her face, and loss of amenities of life from her inadequately
explained or updated reactions to references to the accident. The Plaintiff suffered
acute pain an d psychological distress . The chronic or ongoing sequelae have
improved to the extent that the Plaintiff enrolled for a sewing course and seeks
medical attention occasionally. After considering all these factors, the Court awards
the Plaintiff R500,000 in general damages.
31. The Plaintiff provided a draft order, which has been adjusted in the order that
follows. The order covers the standard undertaking statutorily provided to accident
victims , which includes coverage for future medical expenses and paymen t
provisions for the Plaintiff’s and experts' costs, as well as the costs incurred in
obtaining payment thereof. The Plaintiff sought her party and party costs , as well as
counsel’s costs on the C scale. The order also makes provision for the further
condu ct of the remain ing head of damages relating to loss of earnings. The dates
provided by the Plaintiff for the further conduct of this matter have been adjusted to
accommodate the date of this order.
ORDER
1. The Defendant is liable for the Plaintiff’s proven damages arising from her
injuries and their sequelae of a motor vehicle accident that occurred on 25
September 2019,
2. The Defendant shall provide the Plaintiff with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (‘the
undertaking’) to compensate the Plaintiff for her future medical expenses
and costs arising from her accident -related injuries on 25 September 2019
and their sequelae. The undertaking shall cover the Plaintiff’s costs of
future accommodat ion in a hospital or nursing home or the treatment or
rendering of services for the supply of goods after the costs have been
incurred and upon proof thereof.
3. The Defendant shall pay the Plaintiff’s attorneys the sum of R500 000
(Five hundred thousand rand) (‘the capital’) by way of an electronic
transfer into the attorney’s trust account, the details of which are set out
below.
4. The Defendant shall pay the Pla intiff’s taxed or agreed -upon party and
party costs, including the taxed or agreed fees of Counsel on scale C .
5. The Defendant shall pay the taxed or agreed costs of the reports and
qualifying expenses (where relevant and incurred) of the following medico -
legal experts:
6.1 Dr A Richardson,
6.2 Dr K Cronwright,
6.3 Dr P A Olivier ,
6.4 Dr A Perrot
6.5 Dr D Ogilvy,
6.6 Ms E Burke,
6.7 Ms E Carey
6. The Defendant shall be liable for interest on the capital from 14 (fourteen)
days of this order, and from 14 ( fourteen ) days of the finalisation of the
taxed or agreed costs at the prescribed rate of interest.
7. The Defendant shall pay the costs involved in obtaining payment of the
capital and other costs referred to in the preceding paragraph,
8. The banking details of the Plaintiff’s atto rney’s trust account are:
Account: A Batchelor & Associates
Bank: ABSA Bank
Branch: Heerengracht, Cape Town
Branch Code: 632756
Account number: 4[…]
9. The Defendant shall have the Plaintiff assessed by an Industrial
Psychologist and Occupational Therapist at an agreed date.
10. The Defendant shall file the respective medico -legal reports by 16 May
2025 .
11. The parties shall file a joint minute of the corresponding experts by 9 June
2025.
12. The matter is postponed for the determination of the Plaintiff’s claim for
loss of earnings to the judicial case management roll by 12 June 2025 .
________________________
Bhoopchand AJ
Acting Judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e -mail on 31
March 2025