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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 38422/15
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
30.05.2025
In the matters between: -
TEAGAN GAUCHE PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KEKANA AJ
INTRODUCTION
[1] This is a claim in which the plaintiff claims damages against the defendant. The
Notice of Set Down for trial on 10 February 2025 was served on the defendant by
hand delivery and by electronic means (e -mail) on 25 April 2023 and 26 April 2023,
respectively. There was no appearance on the side of the defendant.
[2] The issues for determination are twofold: first, whether the defendant is liable for the
plaintiff’s damages; and second, if liability is established, the quantification of the
plaintiff’s claim in respect of future medical expenses, past medical expenses, general
damages and loss of earnings . The plaintiff seeks an order directing the defendant to
compensate him for 100% of his proven damages.
[3] The defendant did not admit the RAF 4 serious injury assessment of the plaintiff,
consequently, the plaintiff requested that the issue of General Damages be postponed
sine die.
RULE 38(2) APPLICATION
[4] The Plaintiff brought an application that the evidence relating to the issues of
liability and the extent of damages, in particular, the affidavits of the independent
witnesses and that of the Plaintiff and the medico -legal reports of the medical
experts and the actuarial report of the Actuary, be allowed by affidavit in terms of the
provisions of Uniform Rule of Court 38(2). The court granted the application in
respect of the medical experts and the actuary.
MERITS
[5] The plaintiff testified and did not call any witnesses. He testified that on the 21st
December 2013, he was the driver of a motor vehicle with registration letters and
numbers S[...]. He was in the company of Caela Gauche and Zander Lombard. He was
driving on Beacon Way Drive when a minibus taxi travelling in the opposite direction,
encroached on his lane of travel. He swerved to the left to avoid a head -on collision. His
vehicle went off the road, over a drop -off and landed upside down on its roof. He
sustained serious injuries because of the accident and was treated for his injuries.
[6] He testified that the collision was caused by the negligent driving of the driver of the
taxi in that the driver of the taxi drove on the incorrect side of the road. There was
nothing he could have done to avoid the collision. He had not been able to identify the
vehicle or the driver of the taxi that caused the collision.
[7] Plaintiff further testified that at the time of the collision, he was a 21 -year-old amateur
golfer. Pre -collision, he was expected to become a professional golfer with effect from
April 2014. He had to take two years of recuperation after the motor vehicle collision
and was obliged to withdraw from events owing to pain. He became a professional
golfer and played professionally with effect from 2017. He discontinued his professional
golfing career during September 2022, as he was unable to earn an income playing
golf, owing to his collision -related injuries and the sequelae thereof. He pursued an
alternative career path in the maritime sector as a deckhand. He testified that at the
time of the hearing, he was employed as a senior deckhand.
[8] According to the hospital records, the plaintiff sustained a fracture dislocation of
the cervical spine at the C3/C4 level as a result of the accident. He was transported
by ambulance to the Plettenberg Bay Hospital, where he was stabilised at the
casualty department and X -rays taken. He was thereafter transferred to Life Knysna
Private Hospital, where an anterior C3 -C4 decompression and instrumented fusion
with plate and screws (bone graft taken from right hip) was performed on 21
December 2013. He was hospitalised and ultimately discharged with a hard neck
collar.
[9] The plaintiff bears the onus to prove that the RAF is liable to compensate him for
damages suffered by him as a result of the injuries sustained in the collision. The
accident report confirms the plaintiff’s version regarding the date, the place and how
the accident occurred. In the absence of any evidence to the contrary, I find that the
plaintiff has proved on a balance of probabilities that the insured driver was the
cause of the accident.
QUANTUM
[10] The plaintiff’s claims damages in the sum of R17 306 196.10 made up as follows:
Past medical and hospital expenses R106 196.11
Future medical and hospital expenses R200 000.00
Estimated loss of earnings R15 000 000.00
General damages R 2 000 000.00
________________
R17 306 196.10
The plaintiff relied on the evidence of the below -mentioned experts and a summary of
their evidence follows herein below.
ORTHOPAEDIC SURGEON - DR SENSKE
[11] Dr Senske first examined the plaintiff on the 28 May 2018 and compiled his report.
Dr Senske opined that the plaintiff’s symptoms will improve with successful conservative
or surgical treatment. In his addendum following a subsequent evaluation on the 13
January 2022 Dr Senske maintained that successful conservative / surgical treatment
will improve the plaintiff’s productivity. Dr Senske concluded that there will be no early
retirement due to the orthopaedic injuries sustained in the accident.
PHYSIOTHERAPIST - MS C STEENKAMP
[12] Ms Steenkamp opined that with successful treatment and rehabilitation, plaintiff’s
functional abilities should improve.
OPTHALMOLOGIST - DR VAN ZYL
[13] The plaintiff informed Dr Van Zyl that he had noted blind spots in the left eye soon
after the accident. He sought care a few months later and saw an ophthalmologist at the
Pretoria Eye Institute. After extensive testing, he was told that he most likely has an
optic neuropathy and that recovery was unpredictable.
[14] Dr Van Zyl noted during examination that “the macula on the left showed
paracentral (nasal) pigmentary changes with loss of the foveal reflex”. Dr Van Zyl
concluded that the plaintiff sustained no ophthalmological injury due to the accident. He
also found that the plaintiff suffered from a refractive error (myopia and astigmatism
which was not related to the accident. He stated that the plaintiff’s whole person
impairment score from an ophthalmological point of view is 0%.
[15] In the addendum report dated 30th January 2025, Dr Van Zyl stated that the plaintiff
continued to play professional golf until September 2022. Further, the plaintiff stopped
playing golf for reasons unrelated to his vision, and he has since been working on
yachts.
[16] Regarding the blind spot in the left eye, Dr Van Zyl stated that it is ‘most probably
due to an injury involving the peri -foveal region secondary to the injury he sustained in
the accident. He stated that the plaintiff’s whole person impairment score from an
ophthalmological point of view is 2%.
NEUROSURGEON – DR HOFMANN
[17] The plaintiff informed the neurosurgeon that he sustained a neck fracture and a
bruised left arm. Dr Hofmann noted that there was n o evidence of head injury. Dr
Hofmann recorded the plaintiff’s complaints as the blind spots in his left eye, headaches
and neck pain. Dr Hofmann stated that there were no neurological symptoms.
[18] Dr Hofmann, noted that the plaintiff was prescribed Serdep, a drug used for anxiety
disorder and Wellbutrin, an antidepressant. Dr Hofmann opined that the plaintiff was on
the abovementioned medication, possibly as a result of the plaintiff taking Roaccutane ,
a drug used for acne, which the plaintiff started taking at the age of 15.
[19] Dr Hofmann further noted that the plaintiff returned to playing golf in December
2014 and started playing competitively in 2015. He fell down the rankings after his
accident, from the top 3 to number 14. Dr Hofmann stated that the plaintiff was playing
golf well and had many touring options.
NEUROLOGIST - DR MANESH PILLAY
[20] Dr Pillay compiled a report dated 9th October 2018. Dr Pillay recorded that the
plaintiff was transferred from Plettenburg Hospital to Knysna Hospital on the 21st
December 2013. He had a GCS of 15/15 and normal vitals. He was sent for an MRI.
Further, he had no history of loss of consciousness or neurological deficits . Dr Pillay
noted that no neurological impairments or complications were noted during admission at
Life Knysna Hospital.
[21] Regarding the plaintiff’s complaints at the time of assessment, Dr Pillay indicated
that the plaintiff’s memory was good and he had no cognitive complaints. Further that
there had been no change in the plaintiff’s mood, personality or behaviour. He had
reduced vision in his left eye.
[22] Dr Pillay concluded that the plaintiff did not sustain a significant head injury based
on the fact that he had no loss of consciousness, amnesia or external head injury. It was
Dr Pillay’s opinion that the plaintiff had no objective cognitive, neuropsychiatric or
physical neurological deficit as a result of his accident.
[23] Regarding the neurological effects of the accident, Dr Pillay stated that he does not
foresee any loss of employment due to his neurological injuries.
OCCUPATIONAL THERAPIST - MS ML BUTLER
[24] Ms Butler evaluated the plaintiff on 04 April 2018. After considering Dr Pillay and Dr
Hofmann’s prognosis and the plaintiff’s residual capacity, Ms Butler recorded that the
plaintiff has had excessive and successful physiotherapy, with no alteration to his
current life other than a delay in reaching his goal of being number 1 golf player. She
concluded that the plaintiff is not disabled from playing golf on a professional level, nor
working in any physical capacity up to heavy range work.
[25] Ms Butler concluded that the plaintiff was suited to his pre -accident vocation from a
physical, cognitive and psychological perspective with no pain or deficits reported.
OCCUPATIONAL THERAPIST - MS T GIDINI
[26] Ms Gidini prepared the plaintiff’s addendum report dated 22 June 2022. She stated
that “Should the pain be aggravated or his injury become degenerative, his functional
capacity will deteriorate, and he is not expected to cope in employment that requires
frequent dynamic positions such as required in his current work. He would not be able
to sustain frequent static and dynamic postures to competitive standards required in his
work and early retirement would be expected”.
[27] Ms Gidini opined that the plaintiff is expected to experience difficulties with
participating in his work with regard to “physical dysfunction, cognitive complaints, and
psychosocial disturbances due to limitations found on assessment and those
expressed”.
CLINICAL PSYCHOLOGIST - FEREIRA TEIXEIRA
[28] Mr Teixeira noted that in 2015 the plaintiff was diagnosed with depression (post -
accident) by a psychiatrist and was prescribed anti -depressants Wellbutrin. The plaintiff
indicated to Mr Texeira that the accident may have been a contributing factor to his
depression.
INDUSTRIAL PSYCHOLOGIST - B GROBELAAR
[29] Ms B Grobelaar assessed the plaintiff during April 2018. She recorded that the
plaintiff earned R3000 000 per annum as an amateur golfer between 2011 and 2014.
He became a professional golfer from 2015, earning R30 000 per month (no proof
available), as at November 2021 he was earning approximately R10 000 pe r month (per
bank statements). Sh e stated that the plaintiff was unable to participate on the PGA tour
(a 12 -month golfing season) owing to COVID -19 restrictions and have not been able to
earn his entry ticket for such.
[30] She concluded that the plaintiff could have advanced to the level of a professional
golfer with an equivalent high international ranking (probably PGA player Midpoint), she
based this on the plaintiff’s age, aspirations towards playing professional golf and
ranking collateral provided by his coach.
PLASTIC AND RECONSTRUCTIVE SURGEON - PROF COETZEE
[31] Prof Coetzee noted a traverse scar on the right side of the neck, 70 x 10mm
hypertrophic and pinkish in colour with alopecia and a traverse scar on the right side
crista iliaca of the pelvis, 60 x 7mm hypertrophic, hyperpigmented. He stated that the
plaintiff will require surgical revision of scar on the right side neck followed post -
operative by an anti -scarring regimen and sunscreen protection for six months.
INDEPENDENT MEDICAL EXAMINER - DR ENGELBRECHT
[32] Dr Engelbrecht evaluated the plaintiff on the 03rd April 2018 and recorded the
plaintiff’s injuries as blunt head trauma, blind spots in the left eye and C3/C4 fracture
dislocation. He recorded the plaintiff’s complaints as neck pain associated with tension -
type headaches and loss of vision in his left eye. He recorded that the plaintiff had
reached Maximum Medical Improvement.
THE LAW
[33] Section 17(1)(b) of the Road Accident Fund Act provides as follows:
“The Fund or an agent shall, subject to any regulation made under section 26, in the
case of a claim for compensation under this section arising from the driving of a motor
vehicle where the identity of neither the owner nor the driver thereof has been
established, be obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any bodily injury to himself or
herself or the death of or any bodily injury to any other person, caused by or arising
from the driving of a motor vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or other wrongful act of the driver or of the
owner of the motor vehicle or of his or her employee in the performance of the
employee's duties as employee.”
[34] It is trite that the plaintiff bears the onus to prove how the injuries have affected his
earning capacity. The enquiry into damages for loss of earning capacity is, by its nature,
speculative as stated in Southern Assurance Association Ltd v Bailey NO 1984 (1) SA
98 (A) at 113 G -H. Nicholas JA went on to state that: “All that the Court can do is make
an estimate of the present value of the loss. It has open to it two possible approaches.
One is for the judge to make a round estimate of an amount that seems to him to be fair
and reasonable. This is entirely a matter of guesswork, a blind plunge into the unknown.
The other is to try to make an assessment by way of mathematical calculations on the
basis of assumptions resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions, and these may vary from the strongly
probable to the speculative. It is manifest that either approach involves guesswork to a
greater or lesser extent. There are cases where the assessment by the court is little
more than an estimate; but even so, if it is certain that pecuniary losses has been
suffered, the court is bound to award damages.”
INJURIES SUSTAINED
[35] There is a material difference in the medical records concerning the nature and
extent of the injuries sustained by the plaintiff. The hospital records reflect that the
plaintiff sustained a fracture -dislocation at the C3/C4 vertebral level and was treated
accordingly. There is no reference to a head injury or eye injury in those records.
[36] Conversely, the RAF 4 Form compiled by Prof Engelbrecht refers to "blunt head
trauma" and a "blind spot in the eye", while the physiotherapist, Ms Steenkamp, noted a
"nerve injury to the eye". These discrepancies are unexplained. Notably, Dr Van Zyl
initially recorded no ophthalmological injury as a result of the accident, after noting the
blind spot, but later attributed a left visual field defect to the accident without furnishing
any underlying rationale or assumptions.
[37] Regarding the head injury, Dr Pillay indicated that the plaintiff did not sustain a
significant head injury based on the fact that he had no loss of consciousness, amnesia
or external head injury. Dr Hoffman also stated that there was no evidence of a head
injury.
[38] The role of the expert is to assist the court, and their evidence will be admissible
when the court can receive ‘appreciable’ help from that witness on a particular issue.
See Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at 616H .
[39] In the absence of contemporaneous hospital documentation or corroborating
evidence, and given the lack of consistent expert opinion, I am not persuaded that the
alleged eye or head injuries have been established on a balance of probabilities.
DEPRESSION
[40] The clinical psychologist assessed the plaintiff on 12 January 2022 and noted that
the plaintiff was experiencing symptoms of depression and was prescribed Wellbutrin.
The plaintiff reported to the clinical psychologist that the depression was possibly a
result of the accident. The clinical psychologist did not provide an independent opinion
regarding the cause of the depression. He merely recorded what the plaintiff told him.
[41] The neurosurgeon, Dr Hofmann, noted that the plaintiff was prescribed Serdep, a
drug commonly used to treat anxiety disorders and Wellbutrin, an antidepressant. Dr
Hofmann opined that the plaintiff was on the abovementioned medication, possibly as a
result of the plaintiff taking Roaccutane, a drug used for acne, which the plaintiff started
taking at the age of 15. He stated that the side effects of Roaccutane were well known
without mentioning them.
[42] Both Dr Hofmann and Dr Pillay confirmed that there was no neurological
impairment. There is no medical evidence linking the plaintiff’s depression to the
accident. On the contrary, the available medical evidence supports Dr Hoffmann’s view
that the depression more likely stems from the plaintiff’s prolonged use of Roaccutane
rather than from the accident.
FUTURE MEDICAL TREATMENT
[43] According to Dr Senske, Prof Coetzee and Ms Schepers, the plaintiff will require
future medical treatment for his neck injury in the form of anterior cervical fusion,
surgical revision of the scar on the right side of the neck and physiotherapy.
DELAY IN TURNING PROFESSIONAL
[44] The plaintiff testified that he was a 21 -year-old amateur golfer at the time of the
accident, ranked among the top four in South Africa. He claims that he was expected to
become a professional golfer in 2014. He stated that the accident delayed his transition
to professional status, which only materialised in 2017.
[45] However, the evidence adduced does not support this timeline. The neurosurgeon,
Dr Hofmann, recorded that the plaintiff resumed playing golf in 2014 and was competing
professionally by 2015. The industrial psychologist and the Neurologist also recorded
that the plaintiff started playing professionally in 2015.
[46] Ms Steenkamp confirmed that the plaintiff reported no loss of income but rather a
two-year delay in obtaining a European Tour Card. The evidence before the court is that
at the time of the accident, he was playing golf but was not receiving an income. Ms
Steenkamp stated that “According to Mr Gauche he did not lose any income but it took
him 2 years to obtain his European Card and to become a professional golfer”.
[47] The claim that the plaintiff’s professional career only commenced in 2017 is,
therefore inconsistent with the medical and vocational evidence. Admittedly, the
accident and recovery period may have caused some disruption to his golfing career,
but the evidence does not establish that he suffered loss of income. Especially because
the plaintiff was not receiving remuneration as an amateur golfer and started earning an
income with effect from 2015.
LOSS OF EARNINGS/EARNING CAPACITY
[48] The plaintiff alleges that he was compelled to retire from professional golf in 2022
due to persistent physical limitations allegedly arising from the motor vehicle accident.
As at the date of the hearing, he was employed as a Senior Deckhand. In support of his
asserted loss of earnings and earning capacity, the plaintiff relied on the opinions of Mr
Van Leeuwen and Mr Loxton regarding his career trajectory and earning potential.
[49] Mr Van Leeuwen, who coached the plaintiff, stated that the plaintiff was on the brink
of turning professional at the time of the accident and ranked among the top four
amateur golfers in South Africa. He compared the plaintiff's potential to that of
established professionals such as Brandon Stone, Heyden Porteous, JC Ritchie,
Jacques Kruiswijk, and Zander Lombard. He further opined that the plaintiff could have
reached the level of Christiaan Bezuidenhout and earned in the region of R3 million per
annum. According to him, the plaintiff’s golfing performance was negatively impacted by
a neck injury affecting his swing and a blind spot in his left eye affecting his short game.
However, the court has already found that there is no objective medical evidence
substantiating an eye injury caused by the accident. Accordingly, any opinion evidence
based on the alleged visual impairment is inadmissible and must be disregarded.
Mr Loxton’s evidence is that the plaintiff's sponsorships have been reduced from R100,
000 to R20, 000.
[50] Occupational therapist Ms Gidini , in a 2022 addendum report, opined that the
plaintiff was likely to encounter difficulty in employment due to physical dysfunction,
cognitive complaints, and psychosocial disturbances. She predicted that early
retirement was foreseeable. However, her conclusions are contradicted by multiple
sources. In 2018, Ms Butler, a fellow occupational therapist, found that the plaintiff was
fit for his pre -accident vocation without any physical, cognitive, or psychological
limitations. Her opinion aligns with that of Dr Senske, the orthopaedic surgeon, who
stated that the plaintiff’s symptoms would improve with conservative or surgical
treatment and would not precipitate early retirement. Similar views were held by Ms
Steenkamp (physiotherapist), Dr Pillay, Dr Hofmann, and Ms Grobbelaar.
[51] The SCA in MEC for Health and Social Development, Gauteng v MM obo OM
[2021] ZASCA 128 at para 17 reaffirmed that expert opinions must be properly
reasoned and based on established facts. A bald opinion unsupported by verified data
offers limited assistance to the court. In the present matter, Mr Van Leeuwen failed to
provide objective documentation such as rankings, scores, or tournament achievements
to support the plaintiff’s alleged elite amateur status or future professional potential.
Furthermore, he did not clarify how and when the plaintiff's injuries began to affect his
performance.
[52] The neurologist recorded that the plaintiff resumed playing golf competitively in
2015 and noted that although his ranking dropped from number 3 to number 14, he was
"playing golf well" and had "many touring options". The same expert noted no cognitive
complaints, no personality or behavioural changes, and concluded that no employment
loss was foreseen as a result of any neurological injury.
[53] Dr Van Zyl confirmed that the plaintiff ceased playing golf for reasons unrelated to
the purported eye injury, which, in any event, has been found to be unproven.
[54] The suggestion by Mr Van Leeuwen that the plaintiff could have earned R3 million
per annum is unsubstantiated, subjective, and of limited probative value. As Ms
Grobbelaar correctly observed, the income of a professional golfer is inherently variable
and dependent on numerous factors, including performance consistency, sponsorship
availability, international ranking, and qualifying criteria. It is not sufficient to assume
that, because the plaintiff aspired to emulate a top -ranking golfer, he would have
achieved comparable earnings.
[55] The plaintiff’s post -accident work capacity has been assessed by various experts.
Ms Butler classified the demands of a professional golfer as ranging from medium to
very heavy physical exertion, and nonetheless concluded that the plaintiff remained
suited for such work.
[56] The court further notes that the evidence of Mr Van Leeuwen and Mr Loxton was
submitted via email and not through oral testimony. Their evidence was also not place d
before the court in terms of Rule 38(2). As such, their opinions constitute inadmissible
hearsay evidence and cannot be relied upon. In Mathebula v RAF [2006] ZAGPHC 261
at para 13, the court held that expert evidence must be based on facts established
through admissible evidence during trial unless admitted or proven by competent
witnesses. The failure to adduce oral evidence renders their opinions of no evidentiary
weight.
[57] The industrial psychologist recorded that the plaintiff's inability to participate in
tournaments was, at least in part, due to COVID -19 travel restrictions and the absence
of a PGA Tour entry card. In a separate report, it was noted that the plaintiff
discontinued professional golf due to financial constraints rather than physical disability.
[58] The orthopaedic surgeon, physiotherapist, neurosurgeon, and neurologist uniformly
concluded that the plaintiff retained physical and cognitive function equivalent to his pre -
accident condition. Notably, the plaintiff resumed playing golf post -accident and turned
professional in 2015. During his assessment in 2018, Dr Pillay noted that he was
playing golf well and had many touring options.
[59] Dr Engelbrecht confirmed in 2018 that the plaintiff had reached Maximum Medical
Improvement. Against this backdrop, Ms Gidini’s forecast of early retirement appears
speculative and is inconsistent with the more reliable expert consensus.
CONCLUSION
[60] It is accepted that the plaintiff sustained a neck injury in the accident, which may
have had some limited impact on his physical condition. However, in light of the
contradictions in the medical evidence, the lack of credible and admissible vocational
expert testimony, and the speculative nature of the asserted earnings potential, the
plaintiff has failed to discharge the onus of proving, on a balance of probabilities, that he
suffered any quantifiable loss of earnings or diminution of earning capacity attributable
to the accident.
In the result, I make the following order:
1. Application in terms of rule 38(2) is granted in respect of the medical expert reports
and the actuary;
2. The defendant is liable for 100% of such damages as the plaintiff may be able to
prove;
3. The issue of general damages is postponed sine die ;
4. The issue of past medical expenses to be postponed sine die ;
5. The plaintiff’s claim for loss of earnings is dismissed;
6. The defendant shall furnish the plaintiff with an undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act 56 of 1996 for the costs of the future
accommodation of the plaintiff in hospital or nursing home or treatment of or rendering
of a service to the plaintiff or supply of goods to the plaintiff arising out of the collision
that occurred on the 21 December 2013, after such costs have been incurred and upon
proof thereof ;
7. The defendant to pay costs o n a party and party scale including costs of counsel.
P D KEKANA
ACTING JUDGE OF THE HIGH COURT
Heard on: 10 February 2025
Delivered on: 30 May 2025
Appearances:
On behalf of the Plaintiff: Adv MCC De Klerk
toy@highcourtlaw.co.za
Instructed by: Gert Nel Inc Attorneys
chantel@gertnelattorneys.co.za