IN THE HIGH COURT OF SOUTH A FRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTAB LE: NO
(2) OF INTERES T TO OTHER JUDGES: NO
(3) REVISED: YES
15 July 2025
DATE SIGNATURE
Case No. 25598/2017
In the matter between:
WALE NG, MATO PA ST AN LEY Plaintiff
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant
NEUKIRCHER J:

1] On 24 October 2016, the plaintiff was a passenger on a train travelling from
Kaalfontein station to Lerallal station (Tembisa) in Gauteng Province when the train he
was travelling in collided head-on with a stationary train, along the railway, at Esselen
Park. He alleges that the collision was caused by the sole negligence of the defendant's
employees. He also alleges that, as a result of this collision, he suffered various injuries
and their sequelae for which he now claims damages.
2] At the commencement of the trial I was informed that the defendant had already
conceded the issue of liability. Thus, the defendant had undertaken to pay to the plaintiff
his proven or agreed damages. To this end, both counsel informed me that it was only
the issue of quantum that stood to be decided and, in this regard, specifically the following:
a) the amount of general damages to be awarded to the plaintiff;
b) the amount to be awarded to plaintiff in respect of loss of earnings; and lastly
c) the amount to be awarded to plaintiff in respect of his future medical expenses.
3] The parties main dispute centered around the actual injuries that the plaintiff
allegedly suffered as a result of the collision, their seque/ae, and the amount of damages
for each head of damages to be awa rded.
4] On 9 May 2025, the plaintiff delivered a Rule 28 amendment of the particulars of
claim. The amended pages were delivered a day before 1. the trial was due to commence.
1 On 23 May 2025
2

5] At the hearing of the matter I was informed by the defendant's counsel2 that the
defendant would not seek a postponement to consider the amendment or file an amended
plea The trial would continue on the basis that the defendant denies the issues now
introduced by the plaintiff at the last minute. I instructed the defendant to file its amended
plea to ensure that the formalities had been complied with - this is to ensure that the
matter can be decided on the pleadings before me.
6] The amendment was not, as Mr Hlongwane3 originally submitted, a simple issue of
amending the plaintiffs quantum: the amendment introduced important features to the
matter as it expanded on the injuries allegedly suffered by the plaintiff and their sequelae.
7] In the original particulars of claim filed by plaintiff on 29 March 2017, the plaintiff
pleaded the following injuries and their seque/ae: a left leg fracture and a right shoulder
fracture. The seque/ae of those injuries were not set out by the plaintiff. Instead, he
pleaded that "save for the particular set out hereinabove, the Plaintiff is at present, unable to set
out the nature and extent of the injuries in greater detail."
8] The amendment , effected 8 years later, states that the plaintiff suffered the following
injuries as a result of the collision: a fracture to the left tibial plateau, a dislocation of the
right acromioclavicular joint (a/c joint), a moderate to severe head injury and emotional
shock and trauma.
2 Mr O pperma n
3 Cou nsel for plaintiff
3

9] The minutes of the pre-trial meeting -which was held on 12 May 2025 -are important
as in that minute the alleged mechanism of the plaintiffs injuries4 were set out. The pre­
trial minute records the following:
Plaintiff's version
9.2 On the 24 October 2016 at approximately 13h00, Plaintiff was a passenger in a
train no: 0653 inside coach number 13836, travelling from Kaalfontein station Leraloa
Station (Tembisa), in the Gauteng Province, when the train collided head on with
another stationary train, along the railways, at or near Esselen Park, and the plaintiff
was thrown out of the train onto the floor.
Defendant's version
9.3 The defendant admits the negligence of the cause of the collision and denies
that the plaintiff was thrown out of the train. The defendant denies that he was
thrown out of the train."
10] It is thus clear from the admitted facts of this pre-trial minute that the admission as
to negligence was limited to the collision itself, but the causation element - ie the
mechanism of the plaintiffs injuries - the actual injuries and their seque/ae were not
admitted.
11] The amended particulars of claim now detail the plaintiff's injuries. These include
post-traumatic stress disorder, significant short-term visual memory impairments,
neurological-neurocognitive and neuro-psychological impairments, severe long term
4 le the causality element
4

mental and behavioral disturbances a decreased sensation and weak hand, tenderness
over the right scapular and ale joint, scarring and a general loss of amenities and
enjoyment of life.
12] It must be emphasized that is clear from the amendment that the issue of whether
the plaintiff had suffered a moderate to severe head injury was introduced on 9 May 2025
- some almost 9 years after the incident in question.
13] The consequential amendment of the quantum was not one which occupied much
time. In fact, before the evidence commenced , the parties stood the matter down to
discuss the possibility of settlement. The result of the discussions was that the plaintiffs
loss of earnings was settled in the amount of R585 000. I was not told what factors were
taken into account in the calculation of that amount.
14] The issue of liability and that of loss of earnings having been settled, the trial thus
proceeded on the issues of general damages and future medical expenses only.
15] To this end the plaintiff indicated that he would be calling several witnesses: a
neurologist, an orthopedic surgeon, a clinical psychologist, an occupational therapist and
he would also testify. The defendant had delivered only two experts reports: that of an
orthopedic surgeon and an occupational therapist. Joint minutes of both sets of experts
were filed, but prior to the trial defendant delivered a notice rejecting the joint minutes of
the orthopedic surgeons and disavowed reliance on its orthopedic surgeon.
5

16] Although none of the experts had filed a curriculum vita, the defendant offered no
objection to their evidence being led provided that their qualifications were placed on
record. On this issue I must express my displeasure at the manner in which the pre-trial
conference was conducted: it is clear to me that very little thought was given to the
narrowing of issues such as the issue of the proper qualification of the experts or the
actual disputes regarding the injuries suffered by the plaintiff and the defining of the actual
disputes regarding those and the resultant sequelae. This led to valuable time being
wasted, especially as, at the end of the day, there was no objection to any of the experts'
expertise.
17] Be that as it may , the plaintiff bears the onus and to this end commenced with his
case. Interestingly enough, the plaintiff testified last. This meant that there was no
immediate context to the evidence of his experts.
The hospital records
18] In order to put the evidence in the necessary factual context, the hospital records
are important. These were not disputed by either party and their content was not disputed.
The hospital records inter alia record the following:
a) that the plaintiff was admitted to Edenvale Hospital on 24 October 2016;
b) the doctor's notes state that the plaintiff was a 44-year old man involved in a
train collision yesterday c/o (L) knee and (L) flank pain. On examination an
antalgic gait ORD and normal vitals were observed. There were no focal signs;
6

c) his knee laterally mildly tender but there was no open wound. He had full range
of movement and the patella tendon intact, however an X-Ray and assessment
revealed a left lateral tibia fracture;
d) plan of action was an X-Ray, an above knee blackslab and analgesics.
19] It also appears from the hospital notes, that on 28 October 2016 the knee slab was
removed as the X-ray had revealed that the plaintiff's leg was not actually fractured and
the doctor noted that clinically there was no tenderness and the plaintiff had a good range
of movement. A bandage was then applied and plaintiff was prescribed analgesics.
20] On 14 November 2016, for the first time, the doctor's notes state that there is an
"old" injury of the ale joint and a soft tissue injury of the left leg was noted.
The Orthopedic Surgeon - Dr Moloto
21] The plaintiff's first witness was Dr Moloto, an orthopedic surgeon.
22] He testified that the documents made available to him at the interview with the
plaintiff were the bundle of clinical records from the Edenvale Hospital where the plaintiff
was admitted after the collision on 24 October 2016. He also took a history from the
plaintiff who informed him that he was a passenger on a train and that he had fallen off
the train.
7

23) His evidence was that the plaintiff complained of right shoulder pain on exertion and
a painful left leg. X-rays were done and revealed a Grade 1 a/c joint dislocation. The fact
that this shoulder injury was classified as a Grade 1 injury simply means that it was not a
severe dislocation. He opined that the plaintiffs shoulder pain was not acute, but rather
chronic which is indicative of an old injury 5 . According to Dr Moloto the plaintiff's
movement of his shoulder was not affected by his injury, save that he suffered from pain
on exertion for which his recommended course of treatment was pain medication.6 The
future medical treatment was limited to analgesics7 for the remainder of his life.
24) Dr Moloto conceded that the plaintiff's hospital records did not indicate a head injury,
that plaintiff did not complain to him that he had lost consciousness, nor did he complain
of headaches or any other head related pain during his consultation in 2023.
25) The scarring that was noted was in relation to a surgical scar over the right
acromioclavicular joint and it appears that the plaintiff had shoulder surgery in 2017.8
26) The plaintiffs leg injury was a minor injury of the left tibia I plateau which had resulted
in pain on exertion but could be treated with analgesics.
5 Dr Mo loto could not pinpoint wh en the a/c joint injury had occurred, but simply confirmed that there w as indeed
such an injury
6 The specificity of wh ich w as not provided
7 Being pain med ication
8 This was not in dispute
8

The Neurologist-Dr Tseka
27] The plaintiff then called Dr Tseka, a neurologist. She assessed the plaintiff on 4
October 2023, some 7 years after the collision. She was in possession of the plaintiffs
medical records from the Edenvale Hospital, the plaintiffs identity document and an
instruction letter from the plaintiffs attorney. Her opinion is based on both the plaintiff's
account and her own test results: the plaintiff reported to her that he lost consciousness
after the collision and that he woke up in hospital the day after (ie on 25 October 2016).
Her tests led her to opine that the plaintiff had suffered a moderate to severe head injury
in addition to his orthopedic injuries to his shoulder and leg.
28] The head injury carried with it various sequelae that were reported to her by the
plaintiff: episodic throbbing headaches which resulted in blurred vision and
photosensitivity and lasted for long periods, and mild cognitive deficits. She also
conducted musculoskeletal tests which revealed a decreased strength in his right arm
due to the shoulder injury and she reported scarring on the vertex of plaintiffs head.
29] She opined that the plaintiff has a 15% chance of post-collision epilepsy, but had
had no epileptic seizures to date. Her opinion is based on general statistics that people
who suffer head injuries may only become symptomatic twenty years after the collision.
30] She has recommended that the plaintiff consult a neurologist twice a year at a cost
of approximately R14 000 per annum of the rest of his life and that his pain can be
managed by analgesics.
9

31] Although Dr Tseka conceded during cross-examination that the hospital records had
not recorded a GS Scale9 nor a head injury, but she stated that the patient history and
her clinical examination revealed the head injury. She also conceded that she had not
attempted to obtain any collateral information from, for example the plaintiffs wife and
children or an MRI , and had relied solely on the factual account of events provided to her
by the plaintiff, and her test results 10. She lastly conceded that the plaintiff had not
reported a head injury to the occupational therapist (Ms Motsete).
32] Importantly, Dr Tseka conceded that although she had seen scarring on the vertex
of plaintiffs head, there was no indication of a head wound in the hospital records and
that the scars could have been the result of an injury sustained elsewhere.
33] Importantly, Dr Tseka's evidence revealed
a) inconsistencies in plaintiffs reporting of his loss of consciousness, blurred
vision and headaches to the experts 11 ;
b) she had not deferred to the opinion of an ophthalmologist to investigate the
cause of the blurred vision. She did not perform any test to confirm this
complaint, but relied solely on the say-so of the plaintiff;
c) she had not conducted an MRI ;
9 Glascow Coma Scale which is a neurological scale used to assess a person's level of consciousness after an injury
and is based on three aspects: eye, verbal and mo tor responses. She stated that that the use of the GCS is not
conclusive: sometimes it is possible to use the patient's recount, the neurological examination and sometimes the
investigation, to ma ke a diagnosis
10 Her evidence w as that she "did not know" where she could have accessed further inform ation and she did not ask
either the plaintiff or his attorney for additional information
11 He had not reported this to either Dr M oloto or to Ms Motsete
10

d) she had no collateral information to confirm the presence or absence of any
pre-existing cognitive deficits, and she did not know if the plaintiffs cognitive
deficits pre-dated the collision;
e) she had relied solely on plaintiff's version that he was "fully functional" before
the collision;
f) that her diagnosis of a moderate to severe head injury was based on plaintiff's
history his complaints and the symptoms he reported. She subsequently in her
evidence amended this to an opinion that the plaintiff had suffered a mild head
injury.
34] Dr Tseka however opined that the plaintiffs complaints were the "normal sequ/ae"
of someone who has suffered a head injury.
35] According to her, his whole person impairment (WPI) is 4% according to the AMA
Guidelines12 wh ich she conceded does not entitle the plaintiff to general damages. She
did not conduct a narrative test and conceded that she has never previously conducted a
narrative test.
The psychologist - Dr Selahle
36] Dr Selahle then testified. She is a clinical psychologist. She was given an instruction
letter from the plaintiff's attorney, the hospital records and the reports of Dr Moloto and
Dr Tseka. She interviewed the plaintiff13 and conducted various tests from which she
12 W hich is based on his recurring headaches
13 On 5 October 2023 and again on 28 March 2025
11

made the following observations: that he would not sit for long periods of time and had
general body pains. Following on her tests, as set out in her expert report, she opined
that the plaintiff suffered from neuro-psychological sequelae with visual impairment,
memory impairment and motor-related impairment. According to her findings, the plaintiff
suffered a moderate to severe head injury.14This diagnosis is based on the fact that the
plaintiff was unconscious for approximately a day after the collision.15
37] Dr Selahle diagnosed the plaintiff with post-traumatic amnesia as, on his recount of
events, he woke up in the hospital the day after the collision. Her opinion was that the
GCS is unnecessary to determine post-traumatic amnesia. Dr Selahle was also of the
opinion that a GSC of 15/15 is indicative of a mild head injury. Despite being pressed on
the issue, she remained adamant in her stance.
38] According to her, her tests revealed that the plaintiff had "damaged brain tissue"
which she diagnosed because of his poor performance in the tests she conducted. She
however conceded that there were no records of "lesions to the frontal lobe", nor had any
MRI or CT-scan been conducted either by the hospital or the neurologist. She had also
not ordered any objective tests to be done to confirm her diagnosis of either "damaged
brain tissue" or "lesions to the frontal lobe". It thus appears that her diagnosis is based
only on the plaintiffs version and her test results.
14
This is as opposed to Dr Tseka who opined that he had suffered a mild head injury
15
Her evidence and report state the duration of loss of consciousness determ ines the severity of the brain injury:
up to 5 minutes is a "very mild" brain injury; 5 - 60 m inutes is a mild brain injury; 1 -24 hours is a moderate brain
injury; 1 - 7 days is a severe brain injury; 1-4 weeks is a very severe brain injury and more than 4 weeks is extremely
severe brain injury
12

39] In her view, it was unnecessary to obtain any collateral information -eg through an
interview with the plaintiffs wife - as regards the plaintiffs behavioral changes as the
plaintiff was able to follow instructions during her interview with him. She conceded that
her opinion was formed despite the absence of indication of a head injury in the hospital
records; despite the absence of either an MRI or CT-scan by both the hospital and Dr
Tseka; despite the absence of collateral information to confirm the plaintiffs pre-and post­
collision behavior; and being guided mainly by the plaintiff's say-so. She , however,
remained firm in her view that the plaintiff had suffered a head injury in the collision with
resultant seque/ae.
40] Dr Tseka's opinion was that it was "highly probable" that the plaintiffs account of his
injuries would not be the same to each expert with whom he consulted16 because of what
she termed his "cognitive distortion" or memory loss.
The Occupational Therapist (0 T) - Ms Motsipa
41] The plaintiff's last expert was Ms Motsipa, the occupational therapist. Her evidence
was that the only injuries reported to her were those of the left leg and the right shoulder,.
No head related injuries were reported to her. The plaintiff reported back, neck, hand and
hip pain which she could not explain. The plaintiff did report that post-collision he suffers
from headaches and memory impairment.
16
He failed to report a loss of consciousness to the OT, did not report his headaches to Dr Tseka, did not report
either a loss of consciousness or headaches to Dr Moloto
13

42] Ms Motseto did not assess the plaintiffs long-term memory function as there was
nothing in the hospital records to indicate a necessity to do so. In her report she states:
"The medical information perused did not indicate any brain or head injuries sustained by the
plaintiff ... "
43] In assessing the plaintiff's future occupational needs, she took account of the pain
experienced from the orthopedic injuries and also noted that the plaintiff keeps a garden,
and has done since prior to the collision. He grows vegetables and he needs to fetch
water from a communal community tap. His physical strength capability is approximately
9-11 kg.
44] Ms Motsete conceded in cross-examination that:
a) although the plaintiff could bath and dress himself, he still experiences pain
and he would require assisted devices;
b) the plaintiffs wife presently does the daily household chores but if for some
reason she was unable to fulfill this function, he would require assistance as
he cannot do so himself;
c) he requires assistance with his garden as he cannot carry water from the
communal tap to the garden or do basic gardening tasks without pain and the
physical limitations that his shoulder and leg put on him;
d) a JoJo tank, set up closer to the house would greatly assist the plaintiff in his
overall quality of life and functioning.
14

The plaintiff
45] The last witness was the plaintiff himself. He presented as a slightly built, quiet
witness who barely made himself heard. His evidence was that he had boarded a train
on his way home 17 and his train collided with another. He woke up in hospital the following
day and realized that his whole head was covered with bandages and his leg was in
plaster. There was also a bone protruding from his shoulder. The doctors informed him
that he had been brought to the hospital the day before and that he had been
unconscious.
46] The above account of his head and shoulder injuries were not reported to his experts
other than the loss of consciousness to Dr Tseka and Dr Selahle.
47] Subsequent to his discharge from hospital he was treated as an out-patient.
48] He lives w ith his wife and four children18 and his w ife assists him with everything as
he cannot do the chores he did prior to the collision. His son assists him in the garden.
49] He has always kept a vegetable garden19 where he grows spinach, tomato, potato,
cabbage, green pepper, butternut and sweet potato. He needs to water the garden and
he gets water from the community tap which is about 10km from his house. Prior to his
injury he used to carry two 25kg buckets- his wife now assists him with household chores
17 He was looking for work
18 Who were respectively born in 2011, 2014, 2018 and 2023
19 M easuring approxima tely 20m x 10m
15

and his personal necessities (eg bathing) because of his injuries, and his eldest son helps
him tend the garden. If they are not home , he waits for them. The vegetables are
harvested when ready and he sells them to local community members and earns
approximately R500 per week. He uses this money for stock and to buy household
necessities.
50] The plaintiff's evidence was that since the collision his hand was injured, as were
his leg and head; that he tends to be forgetful; his eyes are affected and blurry; he suffers
from "excruciating pains from the head"; he sees "funny stuff' and gets dizzy and he has
terrible headaches most of the time.
51] His evidence was that the collision has ruined his life because he cannot do the
things he used to any more.
52] He takes Panado for pain as he cannot afford to buy the more expensive medicine
that was prescribed to him.
53] He was previously employed on a chicken farm where he earned approximately
R3 000 per month. His highest level of education is Form 2.
54] Cross-examination of the plaintiff was elucidating:
16

a) it was put to him that the hospital notes do not say that his leg was fractured -
they state that the leg was bruised. The plaintiff could not explain the
discrepancy between his evidence and the hospital records;
b) he testified that when he woke up he realized that his head "split open" and
was bandaged and there was blood on his clothes which came from "blood
oozing" from the wound on his head - this was not canvassed with any of his
expert witnesses, nor was it stated in any of their reports. It was also not in the
hospital records;
c) he stated he had head surgery. I accept however, for purposes of this
evidence, that he refers to his head stitches as "surgery" and there is evidence
of a scar on the vertex of his head. There is, however, no hospital or doctor's
note of any head injury or stitches and there is no objective evidence that his
head was sutured after the collision or because of injuries sustained in the
collision;
d) his shoulder was operated on the day after the collision - yet an "old" shoulder
injury was only recorded on 14 November 2016 and, according to Dr Moloto,
the shoulder surgery was performed in 2017;
e) he conceded that the hospital admission form -dated the day of the collision -
set out his personal information such as his name, identity number, date of
birth, employer's name and address. He could not (or refused to) explain how
the hospital came to be in possession of that information as he was travelling
alone and was adamant that he was unconscious upon admission. He also
denied that it was his signature that appeared on the hospital admission form
17

and was insistent that he was not given any form to sign at any stage. There
was no evidence presented that he provided the hospital with any personal
information at any stage prior to or after his discharge;
f) his explanation for failing to inform the OT about his loss of consciousness was
that he has a "tendency to forget things now and again" and he insisted that he
did inform Dr Moloto that he was unconscious after the collision. He later
testified that if he did not inform the doctors about this issue, it was because "it
was possible [he] forgot";
g) he was unable to bath himself without assistance as he could not use his right
hand because of the pain from his right shoulder and he could not only use his
left hand.
55] The plaintiff was treated as an out-patient for several years and his evidence was
that he returned to the hospital several times during 2017 and 2018 complaining about
headaches. He has an out-patient file but this file was not discovered and was not before
court. The plaintiff testified that he had informed his attorney of the file and could not
explain why it had not been produced.
56] The plaintiff also testified about his daily life and how devices would assist him. I
don't intend to linger much on this now as the OT's produced joints minutes which I will
deal with in due course. Suffice it to say that the plaintiff did state that a JoJo tank closer
to his house would assist him, but that the trolley20, recommended by his OT would not
20 Upon which he could load buckets of water for use in the home and his garden
18

as he would not be able to push it and that irrespective of other devices, he requires help
from his wife to bath and dress himself.
The defendant's Occupational Therapist (OT) - Ms Burns
57] The plaintiff then closed his case and the defendant called its only witness, Ms Burns
who is a qualified OT . Her evidence was that there was a slight language barrier as the
plaintiff does not speak much English but can speak some Afrikaans and that was how
the interview was conducted. He did not report either a head injury or headaches to her
and therefore she did not perform any cognitive functioning tests. The plaintiff also did not
appear to be in any physical distress which she would have noticed had he been sighing
or grimacing during the tests conducted.
58] According to her he managed to lift 13kg in weight and thus, whilst the Ms Motsete
opines that the plaintiff is able to do sedentary to light tasks, she is of the opinion that he
is able to perform light to borderline medium weight tasks. She explained that a medium
task is whether a person can carry 4,5kg weight, which the plaintiff definitely can do.
59] She also opined that the plaintiff has good range of movement in his upper limbs
and should be self-care independent and he had not complained to her of any issues
bathing himself. She also opined that the plaintiff would not need assistance to do home
chores. He is able to garden but may need some assistance because of a weak grip.
19

60] It was put to Ms Burns in cross-examination that her testimony was at odds with the
plaintiffs evidence. Her response was that the plaintiff had not reported the same injuries
and symptoms to all the experts. It was put to her that this is because he was forgetful.
Her response was that the plaintiff had not reported being forgetful to her and that his
variable memory could also possibly be explained by the fact that the plaintiff was not
being entirely truthful.
61] At the end of the day Ms Burns conceded that the plaintiff was capable of pushing
a trolley but with pain, and depending upon how many buckets of water were on the trolley
and how heavy they were. She also ultimately conceded that a JoJo tank situated closer
to the plaintiffs house would assist him. Furthermore, she stated that although she does
not deny that the plaintiff needs physiotherapy, she has not made any recommendation
as she defers to the orthopedic surgeon as to whether this is necessary or not as this
does not fall within her field of expertise - Dr Moloto did not recommend physiotherapy
for the plaintiff.
The Joint minutes of the Occupational Therapists
62) As stated supra, the OT's filed a joint report. They agreed that:
a) the plaintiff may benefit from 6 - 8 hours' occupational therapy to address
mainly joint care principles and musculo-skeletal limitations;
b) no structural adjustments to the plaintiffs accommodation was required;
c) travelling costs to and from any collision related appointments should be
covered per the recommended AA rate.
20

63] The OT's disagreed on the following:
a) whether the plaintiff wou ld benefit from biokinetics and physiotherapy: Ms
Motseto recommended this, but Ms Burns deferred to the orthopedic surgeon
for physiotherapy and the psychologist for psychotherapy as she viewed those
aspects to be outside of her field of expertise;
b) the assisted devices plaintiff would require to improve his daily functioning:
however, both eventually agreed that a JoJo tank would improve the plaintiffs
quality of life;
c) that the plaintiff would require domestic assistance: Ms Motseto recommended
8-16 hours of domestic assistance per week and 8 hours of gardening
assistance bi-monthly for heavy garden tasks. She also made allowance of
R5 000 per annum for assistance with heavy home management tasks. Ms
Burns was of the opinion that the plaintiff requires no domestic, gardening of
home maintenance assistance;
d) Ms Motseto opined that the plaintiff suffered a loss of enjoyment of life
amenities;
e) insofar as the plaintiffs injuries were concerned, the two experts noted the
following:
"8.5 Ms Motseto noted musculoskeletal limitations to the right shoulder and right
hand which impacted Mr Waleng's ability to bilaterally lift and carry medium to
heavy items as well as reported pain in the left lower limb which impacted
standing endurance, walking speed and climbing stairs.
8.6 Ms Burns noted discomfort/pain in both arms when working at above shoulder
levels, balance impairment standing on one leg as well as evidence of
21

discomfort during squatting and kneeling tasks. There was also severe
weakness noted in bilateral grip strength although there was possibility of self­
limiting behavior. His demonstration of carrying capacity suggested ability to
perform work up to medium physical demand";
f) Ms Motseto was of the view that the plaintiff has a residual work capacity that
falls within a sedentary to light category, whilst Ms Burns was of the view that
the plaintiff demonstrated an ability to perform work up to medium category.
64] At the end of the trial the parties provided the court with an agreed list of costs21
(Annexure A) pertaining to interventions and assistive devices for the plaintiff. In this
regard the line items were not common cause, but the cost of each line item (if ordered
by the court) was agreed.
65] Annexure A is broken up into 5 main groups:
a) therapy, treatment and assistance which totals R461 614;
b) transport costs which totals R1 972;
c) recommended treatments by the joint minutes of the orthopedic surgeons
which totals R70 000;22
d) recommended treatments by the clinical psychologist which totals R38 833;
and
e) recommended treatment by the neurologist Which totals R264 393.
21
Which is referred to as Annexure "A" to the actuarial report authored by Ekhaya Risk Services in respect of the
plaintiff's loss of earnings
22
And in respect of which it must be pointed out that the defendant has rejected the joint minutes and they w ere
not referred to in evidence
22

66] All in all, the total amount claimed for the plaintiffs future medical expenses is
R836 812. One must, at all times, bear in mind that this calculation is based on the
assumption that the plaintiff indeed suffered the injuries and sequelae pleaded by him.
67] The issue of the amount to be awarded to plaintiff for general damages and future
medical expenses can only be determined after the central dispute has been adjudicated.
Simply put, the dispute is: what injuries were suffered by the plaintiff as a result of the
collision? Once that is determined, the court must decide what were the seque/ae of those
injuries were. Only after these determination, can the court exercise its discretion insofar
as an award of general and special damages is concerned.
The plaintiff's injuries
68] It is immensely unfortunate that no evidence at all was led surrounding the
mechanism of plaintiffs injuries. The extent of the evidence was that he was on a train,
that it collided with another train and he woke up in hospital the following day. There was
no evidence from the plaintiff or any witness that (for example) the plaintiff fell and
bumped his head.
69] But the fact is that the defendant, in offering to pay the defendant an amount for loss
of earnings, has conceded that the plaintiff was , as a fact, injured. No evidence was put
before me how that calculation was made , what assumptions were made in the
calculation (eg that the plaintiff was rendered unemployable by the extent of his injuries)
or even what those injuries were. This is important as the plaintiff alleges that he suffered
23

a fractured left leg, an ale joint dislocation and a mild head injury. The defendant,
however, alleges that the plaintiffs only injury was a soft tissue injury of the leg.
Analysis
70] The experts' evidence cannot be adjudicated in isolation. It is as against the
background of the plaintiffs own evidence and the documentary evidence - the hospital
records - that their evidence must be adjudicated. I can also not lose sight of the fact that
the experts evaluated the plaintiff approximately 7 years after he was injured. Thus, the
only objective contemporaneous evidence is that of the hospital records which must be
viewed against the evidence of the plaintiff.
71] I have already set out the recordal of the plaintiffs injuries by Edenvale Hospital. At
best for plaintiff, it indicates that the initial diagnosis of a left leg fracture was found to be
incorrect after an x-ray was performed; furthermore, an "old" ale joint injury was recorded
three weeks after the collision. There is no recordal at all of a head injury or any sequlae
in the hospital records, in the report of Dr Moloto or that of Ms Motsete. The account of
the plaintiff's head injury is thus inconsistent.
72] The plaintiffs version is that he woke up in hospital with his head bandaged and his
clothing full of the blood that was oozing from the wound on his head This was not put to
any of his experts for their comment. It is also not in dispute that his account of his injuries
to the various experts, and the extent of his physical complaints, varied. In my view, the
24

plaintiff was not a very good w itness. His version in the w itness stand became increasingly
embellished the longer he testified and the more he was cross-examined.
73] The plaintiff's version is, given all the inconsistencies when viewed over the entire
conspectus of the evidence he put before me , unsatisfactory and improbable. In my view,
given the embellished version of his head injury and shoulder injury, there is a strong
possibility of malingering.
74] One of the most crucial elements that the plaintiff failed to prove is the causation
element. Other than the plaintiffs disputed version as set out in the pre-trial minutes23,
there is not one shred of evidence of the nexus between the collision and his head and
shoulder injury. As his version in is dispute, he bears the onus to prove the causation,
extent and sequelae of his injuries. All of his experts only assessed him in 2023, some
seven years later, and so the hospital records thus play a vital role in establishing
causation.
75] I agree with Mr Hlongwane that the hospital records, on their own , are not
determinative of the plaintiff's injuries, but where there is a dearth of other objective
information, these records become more important in establishing the causal link between
the collision and the injuries.
23 Par 9 supra
25

76] I must also take into account that is that there is no explanation whatsoever how the
plaintiffs personal information was recorded on the date of his admission to Edenvale
Hospital.
77] The improbabilities of the plaintiffs case lie in the following:
a) his version of his head injury24 was not recorded by any of his four experts, nor
was it put to them in their examination-in-chief. This meant that the defendant
was denied the opportunity to cross-examine on this crucial evidence;
b) the plaintiffs version as regards his shoulder injury is, similarly, and for the
same reason, improbable;
c) it is also improbable that the plaintiffs leg injury and treatment would be
recorded in the hospital records in some detail, but not one word written about
either a head injury or a shoulder dislocation especially of the nature described
by the plaintiff in his evidence;
d) an "old" shoulder injury was recorded on 14 November 2016 - some three
weeks after the plaintiffs discharge and Dr Moloto could not explain what this
meant;
e) despite the plaintiffs evidence that he had received out-patient treatment
during 2017 and 2018 for his injuries, and that an out-patient file had been
opened in his name , this was not produced;
f) it was not in dispute that he had undergone a shoulder operation in 2017, but
no records were produced for this either.
24 le the bandages and oozing blood
26

78] As a result, and given the inconsistency and improbabilities of the plaintiffs version
as a whole, his experts' evidence must be viewed with caution.
79] In Bee v Road Accident Fund 25 the following was stated:
"[22] It is trite that an expert witness is required to assist the court and not to usurp the
function of the court. Expert witnesses are required to lay a factual basis for their
conclusions and explain their reasoning to the court. The court must satisfy itself as to the
correctness of the expert's reasoning. In Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty)
Ltd and Another 2016 (2) SA 586 (SCA) ([2015] ZASCA 164) para 15, this court said:
'Lastly, the expert evidence lacked any reasoning. An expert's opinion must be
underpinned by proper reasoning in order for a court to assess the cogency of that opinion.
Absent any reasoning the opinion is inadmissible.'
In Road Accident Appeal Tribunal and Others v Gouws and Another 2018 (3) SA 413
(SCA) ([2018] 1 All SA 701; [2017] ZASCA 188) para 33, this court said:
'Courts are not bound by the view of any expert. They make the ultimate decision on issues
on which experts provide an opinion.'
See also Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA
1188 (SCA) ([2002] 1 All SA 384) para 34.
[23] The facts on which the expert witness expresses an opinion must be capable of being
reconciled with all other evidence in the case. For an opinion to be underpinned by proper
reasoning, it must be based on correct facts. Incorrect facts militate against proper
reasoning and the correct analysis of the facts is paramount for proper reasoning, failing
wh ich the court will not be able to properly assess the cogency of that opinion. An expert
opinion which lacks proper reasoning is not helpful to the court. See also Jacobs and
25 2018 (4) SA 366 (SCA)
27

Another v Transnet Ltd tla Metrorail and Another 2015 (1) SA 139 (SCA) ([2014] ZASCA
113) paras 15 and 16; see also Coopers (South Africa) (Pfy) Ltd v Deutsche Gesellschaft
fur Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at 371 F."
80] It is in this reconciliation of all the evidence that some of the plaintiff's experts fell
short.
81] I found Dr Mo loto's evidence to be considered, measured and helpful. I accept that
his objective evaluation of the plaintiff had revealed that the plaintiff had, at some stage,
suffered an injury to the a/c joint. He conceded that the hospital records recorded only the
leg injury on the date of the collision and that the shoulder injury was only recorded some
three weeks later on 14 November 2016.
82] It is clear that his examination revealed that the plaintiffs should had suffered a
malalignment as a result of a chronic dislocation which he diagnosed also from the X­
rays received. But importantly, Dr Moloto did not attempt to justify the hospital records of
14 November 2016. I also accept his diagnoses that shoulder injury was a mild one (a
Grade 1 injury) and that the injury to the leg was a soft tissue injury.
83] Dr Moloto confirmed that he did not notice a scar on the vertex of the plaintiffs head
during his consultation with him on 17 January 2023. Had he seen this, he would have
recorded it in his notes. He testified that the only scar he saw was the one on the plaintiff's
left shoulder. The failure to record this is somewhat puzzling as the vertex scar was
28

recorded by Dr Tseka in her consultation with the plaintiff on 4 October 2023, but not by
the Occupational Therapist in her report of 20 January 2023.26
84) This leads one to an ineluctable inference that the injury was sustained somewhere
between January 2023 and October 2023, especially as there is no recordal of it at all in
the hospital notes of 2016.
85) Unfortunately, I cannot find that either Dr Teska's or Dr Selahle's opinions should
be accepted. This is because, as was clear from their evidence, they had simply accepted
the say-so of the plaintiffs account of his injuries as those resulting from the collision.
They did not confirm his injuries either with an MRI , or a CT- scan or by obtaining any
independent collateral information regarding the plaintiffs pre-collision cognitive or
physical functioning and had simply assumed that his account was correct when
performing their tests and forming their opinions.
86) In L.Z.D obo T. K v R oad A ccident Fund 27 the plaintiff was a pedestrian and was
knocked down by a motor vehicle. In her suit against the RAF , she alleged that she had
suffered a head injury, but this was not recorded in the hospital records. She relied on
expert evidence to prove this injury but led no factual evidence in court. The Full Court
held as follows:
"[18] In A M and Another v MEG for Health, Western Cape , the SCA put it thus:
''The opinions of expert w itnesses involve the drawing of inferences from facts. The
inferences must be reasonably capable of being drawn from those facts. If they are
26 She only recorded a healed scar of the a/c joint
27 (A2023-0691885) [2024] ZAGPJHC 175 (23 February 2024)
29

tenuous, or far-fetched, they cannot form the foundation for the court to make any finding
of fact. Furthermore, in any process of reasoning the drawing of inferences from the facts
must be based on admitted or proven facts and not matters of speculation. As Lord Wright
said in his speech in Caswell v Powell Ouffryn Associated Collieries Ltd: s 'Inference must
be carefully distinguished from conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the other facts which it is sought to
establish . . . But if there are no positive proved facts from which the inference can be
made , the method of inference fails and what is left is mere speculation or conjecture."
[19] Similar statements have been made in the SCA in RAF V SM and MV Pasquale.
[20] In the current matter, the only factual evidence which exists to establish that DTK
was injured at all on 3 May 2016 are the medical records obtained from the Bheki Mlangeni
Hospital. No direct evidence was given by the plaintiff or any other person who witnessed
any injury having been sustained on 3 May 2016. The hospital records reflect an injury to
the patient's right leg and do not reflect any head injury. No application was made to admit
the hearsay evidence relied on in the expert reports and it was not suggested that the
plaintiff or the driver (who appears from the police statements to have been known to the
plaintiff) were unavailable to give evidence of the injuries sustained ...
[23] In my view, there is a fundamental problem with the plaintiffs case. Whether the
hospital records are admitted into evidence or not, there is no evidence in the record that
DTK suffered a head injury in the collision. The plaintiff cannot succeed to recover
damages from the RAF purely on the opinion evidence of experts who examined DTK five
years after the collision occurred, where there is no factual evidence showing that a head
injury (on which all of their views rely) was actually sustained in the collision.

injury (on which all of their views rely) was actually sustained in the collision.
[24] All of the expert reports refer to statements made to them (or to another expert) by
the plaintiff when recording the factual assumptions underpinning their reports. None of
the experts had any personal knowledge of the injuries DTK suffered in the collision and
none of the experts had any personal knowledge of DTK 's abilities or the challenges she
faced before the collision. This is because, as the Supreme Court of Appeal has
cautioned, before any weight can be given to an expert's opinion, the facts upon w hich
30

the opinion is based must be found to exist. An opinion based on facts not in evidence has
no value for the Co urt. "28
87) The plaintiff argues that in this case in casu, factual evidence was led before the
court by the plaintiff himself: that is that he testified how the collision happened and that
he lost consciousness and only regained it the following day in hospital. However, I have
already found the plaintiffs version to be unreliable and improbable and his version must
be rejected as well the opinions of these experts. 29 There is no objective evidence before
me whatsoever that the plaintiff suffered a head injury in the collision.
88) The shoulder injury must suffer the same fate as the head injury. Whilst Dr Moloto
confirmed a Grade 1 shoulder injury and that the plaintiff had a shoulder operation in
2017, the is no objective evidence that the shoulder injury resulted from the collision. The
fact that an "old" shoulder injury was reported on 14 November 2016 is also, in my view ,
insufficient to prove that the injury was suffered as a result of the collision. At best for the
plaintiff, this court is uncertain when the injury came about and thus I find that the plaintiff
has failed to acquit his onus in respect thereof.
89] It is as a result of the above conclusions that the head and shoulder injuries, and
their sequelae must be excluded from any award in respect of general damages and
future medical expenses.
28 Footnotes excluded
29 Dr Tseka and Dr Sehlale
31

90] Thus, it would appear from the objective and opnion evidence of Dr Moloto (who is
the only expert who is qualified to diagnose the plaintiffs leg injury) that the plaintiff has
suffered a minor leg injury.
General damages
91] Although the plaintiff has claimed in a separate head of damages for the pain and
suffering caused as a result of his injuries, in my view this must all be considered together
for the purpose of determining general damages . Unfortunately, it appears that De
Selahle has linked any PTSD and psychological sequelae to her diagnosis of a head
injury, and thus it is excluded from consideration in the determination of the amount of
general damages to be awarded to plaintiff in respect of the leg injury.
92] In Mae/e v Road Collision Fund 30 the plaintiff was a 7-year old child who had
suffered a mild concussive brain injury and a fractured left tibia. She was hospitalised for
five days post collision, and had a plaster of Paris cast applied to her leg. She endured
acute pain for four to five days after the collision a moderate pain for a few weeks. She
experienced discomfort when running, walking or standing for long distances and when
kneeling. She also experienced learning difficulties prior to the collision and had a dismal
school record which was not exacerbated by her injuries. The court awarded R330 000
in general damages (R569 000 in 2025).
30 2015 (7E4) QOD 1 (GNP)
32

93] In Abrahams v Road Collision Fund 31 a 41-year old man suffered a badly
comminuted fracture of the right proximal femur; fracture of the right distal fibula and
patella; fracture of the right medial malleolus; severe soft tissue injuries to the left hand;
secretions in the chest and a mild concussive traumatic brain injury. Various orthopedic
surgeries were conducted and the plaintiff was eventually left with a shortened right lower
limb with a need to wear an assistive device. She suffered secondary osteoarthritis in the
left knee, a limitation of the range of movement and pain in the right hip, knee and ankle
and her pre-existing generalized anxiety disorder and social phobia were exacerbated.
The court awarded R500 000 (R826 573 in 2025).
94] In my view, the plaintiffs injuries cannot be compared to the above-mentioned
cases. It is so that no two matters are ever the same , and that a court uses previous
decisions as a guideline. Given the facts before me, at best, the plaintiff's leg injury was
a mild one and an amount of R80 000 will more than fairly and adequately compensate
him for any pain, suffering and loss of amenities of life.
Future med ical expenses
95] Both of the OT's have agreed that the plaintiff will require 7 sessions of occupational
therapy at a cost of R9 285. I see no reason to deviate from this recommendation.
96] They have also agreed that a JoJo tank will greatly alleviate the plaintiff's burden of
fetching and carrying water to his house. This carries with it an estimated cost of R 1 o 54 7.
31 2014 (7J2) QO D 1 (ECP)
33

97] I am also of the view that the cost of ice and heat packs (of R790) and warm packs
(of R2 045) should be granted as they will assist the mitigate any pain and discomfort
plaintiff suffers resulting from the leg injury.
98] Insofar as analgesics are concerned (these recommended by Dr Moloto to manage
the plaintiffs pain), it is unfortunate that the heading to the quantification of R70 000 is
"consultations/surgery/rehabilitation and analgesia". It is so that the evidence is that the
plaintiff has required follow-ups from the clinic especially in 2017 and 2018 for his pain.
There was no evidence regarding whether this bore a cost. It is unlikely to have done, as
there is no claim for past medical expenses. Be that as it may , Dr Moloto did not testify
that any surgery would be required for plaintiff's leg injury. However, I accept that he will
require consultations and analgesics32. There was no evidence from a physiotherapist
regarding any "rehabilitation" and Ms Burns evidence was that she would defer to a
physiotherapist in this regard as an OT is not qualified to opine on this issue. I thus am of
the view that an amount of R35 000 would suffice for any consultations and analgesics.
99] Thus, the quantification of the plaintiffs damages is the following:
a) general damages R80 000
b) future medical expenses R57 667
c) future loss of earnings R585 000 (by agreement)
TOTAL R722 667
32
W hich Dr Mo loto opines w ill cost approximately R3 000 per annum life-long
34

100] Counsel were in agreement that costs should follow the result and be taxed in
accordance with Scale B.
ORDER
The order I make is the following:
1. By agreement, the defendant is ordered to pay to the plaintiff his proven or agreed
damages.
2. The quantum of damages to be paid by the defendant to the plaintiff is the amount
of R722 667 which is quantified as follows:
a) general damages R80 000
b) future medical expenses R57 667
c) future loss of earnings R585 000 (by agreement)
3. The defendant is ordered to pay the plaintiff's costs of suit which costs are to be
taxed in accordance with Scale B.
B NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected, and is
handed down electronically by circulation to the parties/their legal representatives by
email and by uploading it to the electronic file of this matter on Case lines. The date for
hand-down is deemed to be 15 July 2025.
35

For the plaintiff
Instructed by
For the defendant
Instructed by
Matter heard on
Heads of argument submitted
Judgment date
Adv Hlongwane
Nkuna Rose Attorneys
Adv Opperman
Norton Rose Fu lbright South Africa
26 May 2025 - 30 May 2025
2 June 2025
15 July 2025
36