IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
CASE NO: 3606/2021
In the matter between:
NEVANA YULEEN ANDREWS Plaintiff
and
ROAD ACCIDENT FUND Defendant
Neutral citation:
Coram: O’BRIEN AJ
Heard: 10 June 2025, 11 June 2025, 19 June 2025
Delivered: 29 July 2025
Summary:
___________________________________________________________________
ORDER
___________________________________________________________________
O’Brien AJ:
I make the following order:
(a) The defendant shall provide to the plaintiff an undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for the
payment of the cost of the future accommodation of the plaintiff in a
hospital or nursing home or treatment of or rendering of a service or
supplying goods to her arising from the injuries sustained by her in the
motor vehicle accident on 29 February 2016, after such costs have
been incurred and upon proof thereof;
(b) The defendant shall pay to the plaintiff an amount of R8 761.54 in
respect of her claim for past hospital and medical expenses;
(c) The defendant shall pay an amount of R568 430.00 for loss of earning
capacity;
(d) The defendant shall pay the plaintiff’s costs of suit, on a party and party
scale, including the fees of counsel on Scale C, and the reasonable
and necessary qualifying expenses of the following expert witnesses:
1.d.1. Dr Carl Liebetrau, orthopaedic surgeon;
1.d.2. Dr Movsowitz and Conway, radiologists;
1.d.3. Ms Chantelle Griesel, occupational therapist;
1.d.4. Ms E Erens, physiotherapist;
1.d.5. Dr Chris George, psychiatrist;
1.d.6. Ms Mia Boon, counselling psychologist;
1.d.7. Mr Lani Martiny, industrial psychologist; and
1.d.8. Ms Michelle Barnard, actuary.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
O’Brien AJ:
Introduction
[2] In her amended particulars of claim, the plaintiff a 51 year old female , claims
from the Road Accident Fund (“RAF”) the following:
(a) General damages: R 600 000.00
(b) Past medical expenses: R 100 000.00
(c) Past loss of income: R 800 000.00
(d) Future loss of income: R2 400 000.00
____________
Total amount of damages: R3 900 000.00
[3] The merits were settled in favour of the plaintiff’s claim.
[4] Regarding future medical expenses , the RAF provided an undertaking in
terms of Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996.
[5] The only issues that require adjudication are the plaintiff’s damages for future
medical expense s and past and future loss of income. The plaintiff testified
that she is 51 years old, a mother of two boys and resi des in Kraaifontein. At
the time of the accident , she lived in Highbury Park, Kuils River. When the
accident occurred, she was the driver o f her vehicle when a minibus taxi
collided with the side of her car. She immediately felt pain in her hip and back.
[6] She was taken to the emergency section of the Netcare Hospital, Kuils River.
At the hospital , she was given pain medication for a whiplas h injury she
suffered.
[7] After the accident, she could not move due to spasms in her right leg.
[8] She was always a safe and confident driver, but after the accident, developed
a fear of driving. She travels by bus from Kraaifontein to the City Centre.
[9] When the accident occurred, she was working for Nedbank Home Loans. Her
job description was to call on clients, developers and attorneys. To this extent ,
she had to do approximately 16 visits per week. Due to her inability to
continue in her job function, she requested that her manager allow her to work
remotely from home. Consequently, her work became more administrative as
she was not able to work effectively from home. She was later retrenched.
[10] In October 2022, she went back to Nedbank.
[11] Thereafter, she worked for a company called Capcubed , where she managed
support staff, a role that was not her preferred one . She travelled to KZN to
visit clients. She was eventually retrenched.
Out of desperation , she joined SA Home Loans , where she earned a basi c
salary plus commission. Again, her functionality was more administrative.
[12] In November 2022, she was appointed as the sales manager for Africa Dried.
She acted as a manager at a call centre until March 2022.
[13] On 3 April 2023, she began her role as a sales executive at the CTICC.
[14] She further testified that after she took medication for pain , she developed an
anal fissure.
[15] Before the accident , it had always been her intention to move into a
management position, and she aspired to become a sales manager. After the
accident, her career underwent a change.
[16] Under cross -examination, she confirmed that in 2021 , she had been
retrenched. Her first husband passed away in 2023. Her youngest son was
expelled from school. It was put to her that , according to one of the experts ,
she was ambivalent and in an unstable relationship with her second husband.
She denied this contention. It was also p ointed out to her that Dr Carl
Liebertrau, an orthopaedic surgeon, found that physically she would be able to
continue working until retirement. She could not really comment on this
statement.
[17] Questioned by the court , she confirmed that she had attended evening
classes while obtaining her diploma in management from the University of the
Western Cape. Since October 2023 , she and her second husband have been
separated but not divorced.
[18] Chantel Griesel , an occupational therapist , assessed the plaintiff on
8 December 2022. On 20 February 2023, she concluded her report. At the
time of her assessment, the pl aintiff complained of pain in her lower back, her
right hip and cervical pain around the base of her neck. The plaintiff also
complained of muscle spasms in her right-lower leg.
[19] During the plaintiff’s physical assessment, the range of motion in her neck ,
hips, knees and back movements appeared normal with no visible restrictions.
The plaintiff was able to climb stairs independently without visible discomfort.
However, she moves slowly and carefully through the range of motion noted
during active range of motion testing. Her gait and posture remain unaffected
whether she is sitting or standing.
[20] According to a psychological assessment , the plaintiff was able to
comprehend and follow instructions but struggled to main tain attention and
concentration during certain functional tasks. She experiences difficulty
performing motor tasks and communicating simultaneously even though the
activity demands were repetitive and low in cognitive demand.
[21] She performed functional capacity testing, namely the Valpar 8 and 11. These
tests assess the plaintiff’s ability to follow instructions, standing endurance,
mental stamina and eye -hand-foot coordination. During this testing , the
plaintiff was constantly showing signs of anxiety and frustration. There was
stiffness in he r neck, shoulders and her right leg. She experience s pain and
numbness in her right leg while sitting and standing and appear s to be highly
frustrated, wanting to complete the task.
[22] According to this witness , the plaintiff endures pain , which directly i nfluences
[22] According to this witness , the plaintiff endures pain , which directly i nfluences
her ability to maintain productivity, efficiency and efficacy in her work -related
tasks. However, this witness did not assess the plaintiff in her current position
at CTICC. The witness recommends assessment by a clinical psychologist.
Furthermore, the plaintiff requires seating and standing assistive devices to
relieve her pain experience during sitting and standing.
[23] Mia Boon, a counselling psychologist , assessed the plaintiff on 5 September
2023. She conducted various assessment s on the plain tiff. The plaintiff
experiences anxious arousal , which suggest s persistent feelings of tension
and hypervigilance, often associated with the aftermath of traumatic
experiences. Her elevated scores on the anger/irritability scale suggest
unresolved anger an d emotional dysregulation, possibly related to her
traumatic experience. The plaintiff experiences a disconnection from her
thoughts, feelings or identity , which can be a coping mechanism for dealing
with trauma. Her emotional tests highlighted symptoms of anxiety and
depression. In her opinion , the plaintiff suffers from posttraumatic stress
disorder; additionally, she manifests symptoms of depression and anxiety,
which could be exacerbated by the physical pain resulting from her sustained
injuries.
[24] The witness recommends that the plaintiff receive psychotherap y; see a
psychiatrist for pharmacological management of her depression and anxiety to
manage her pain.
[25] Lani Martiny, an industrial psychologist , assessed the plaintiff on 1 November
2022. In comp iling his report, he had access to the various medico -legal
reports presented in this matter. The plaintiff told him that if the accident had
not happened, she would have continued working for Nedbank and intended
to progress into management where she woul d have retired at the age of 65
years. Given the injury, she will likely retire at the age of 60.
[26] Collateral information obtained from Nedbank revealed that the plaintiff
frequently complained at work and her regional manager had to take her to
frequently complained at work and her regional manager had to take her to
the hospital on at least one occasion. Due to her anxiety when driving in her
car, she was allowed to work from home for a period due to the pain she
experienced.
[27] In her pre-morbid career scenario, the witness believed that the plaintiff would
probably have remained employed by Nedbank. By the time she reached the
age of 45 years , she would have at least moved up one level. A level
movement in the skilled band leads to an approximate 14% increase. She
would have continued with average annual increments of approxi mately 7%
until 50-55 years , when she would have been promoted , resulting in an
estimated 14% increase. Thereafter , she would receive average annual
increments until her retirement at age 65.
[28] Regarding her post-morbid career scenario, the witness took into account that
she experienced difficulties in doing her work at Nedbank. She had a
sympathetic employer who allowed her to work from home for a period. After
receiving optimal medical treatment, she will probably retire at 60. Her
productivity may be aff ected by the combined sequelae of her injuries, her
emotional state, and her advancing age; she will probably retire at age 60.
[29] He opines that there may be changes in the plaintiff’s employment leading to
gaps in employment and changes in her income , which would be best
addressed through contingencies.
[30] The reports of Anita Erens and Dr Chris George w ere admitted into evidence
without objection. Erens, a physiotherapist, concludes that the plaintiff
presents with symptoms of chronic pain disorder. This pain has impacted her
ability to function fully in her domestic tasks, leisure activities and
employment. She recommends that the plaintiff follow a rehabilitation program
consisting of physiotherapy and counselling.
[31] Dr George, a psychiatrist , diagnosed the plaintiff as suffering from a chronic
adjustment disorder with anxious and depressed mood, and chronic pain
syndrome. He prescribed anti -depressants and will follow up and monitor her
syndrome. He prescribed anti -depressants and will follow up and monitor her
progress to adjust her medication according to her therapeutic responses.
[32] The defendant elected not to call any witnesses and closed its case. There is
a duty on a plaintiff to adduce sufficient evidence to enable a court to award
an amount that seems fair and reasonable. Griffiths v Mutual & Federal In s
Co Ltd 1994 (1) SA 535 (A) at 546.
[33] In Southern Ins Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 113:
‘Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the court can
do is to make an estimate, which is often a very rough estimate, of the present
value of the loss.’
[34] In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at 586:
‘The calculation of the quantum of a future amount, such as loss of earning
capacity, is not, as I have already indicated, a matter of exact mathematical
calculation. By its nature, such an enquiry is speculative and a court can
therefore only make an estimate of the present value of the loss that is often a
very rough estimate (see, for example, Southern Ins Association Ltd v Bailey
NO). The court necessarily exercises a wide discretion when it assess es the
quantum of damages due to loss of earning capacity and has a large
discretion to award what it considers right.’
[35] Mr Corbett, acting for the plaintiff , argued that it was always the plaintiff’s
intention to remain in the banking industry. He further contended that Griesel
administered a test to determine the plaintiff ’s f unctionality in completing
physical tasks in which the latter was compromised . The evidence of Erens
and Dr George was admitted as evidence without objection from the
defendant. Both opined that the plaintiff suffered from chronic pain syndrome ,
which ha d become entrenched over a long period. Boon and Dr George
diagnose posttraumatic stress syndrome.
[36] Mr Corbett further submitted that the Court should accept the evidence of the
industrial psychologist , Martiny, that the plaintiff would have remained at
Nedbank. At age 45 , she would have been promoted with a 14% salary
increase. Post-morbidly, the plaintiff has difficulties in performing at her pre -
level functioning.
[37] Ms Thomas, acting for the defendant, submitted that the orthopaedic evidence
indicates that the plaintiff will be able to continue with her employment. The
plaintiff worked for nine and a half years after the accident and continu es to
work. There is no indicat ion that she is not coping with her current level of
functionality. There is no evid ence to show that the plaintiff would have been
promoted at age 45. Furthermore, given the plaintiff’s psychological
functioning after the accident, which according to Ms Thomas, is not related to
the accident, it should not be taken into consideration. St ated differently, the
defendant argued that the two factors – her son’s expulsion from school, the
separation from her current husband – are two independent factors that
impact her psychological functioning which is unrelated to the accident. Also,
no assessment was done in her current job to determine her productivity.
[38] Mr Corbett noted that there is no evidence to suggest that the plaintiff suffered
any psychological harm prior to the accident. She is an ambitious woman,
who was well re munerated which i s test ament to her drive and ambition.
Although she struggles with pain, she has mitigated her loss by continuing to
work. This shows her determination and motivation. The evidence shows that
she is a career orientated woman. He concludes that the accident was the
primary cause that contributed to her psychological fallout.
Discussion
[39] The plaintiff impressed as an independent -minded individual inten t on
furthering her career. However, I cannot ignore the fact that from a physical
furthering her career. However, I cannot ignore the fact that from a physical
perspective, Dr Liebetra u, the orthop aedic surgeon , found the plaintiff to be
able to cope with her employment, notwithstanding the pain she experiences.
Thus, from a physical point of view there are no deficits.
[40] The impression I gained of the plaintiff, apart from some difficu lties
immediately after the accident, was that as time p assed, she coped. The
plaintiff managed to obtain a tertiary education ; her current employment
requires her to liaise with customers, including walking long distances as part
of her job description . N ot complaining about current occupational hazards
shows her ability to continue in her current position. The plaintiff’s salary has
consistently increased over the years. There is no evidence to suggest that
the plaintiff in her current role is unable to c ope with the demands of her job.
After the accident, she received an award from her then employer.
[41] Concerning her psychological condition, her PTSD did not impact her ability to
perform her work. I cannot ignore the fact that the plaintiff’s current sit uation –
her son expelled from school, separated from her second husband,
contributed to her psychological fallout.
[42] What I stated in the previous paragraph, however, does not mean that the
plaintiff did not suffer damages as a result of the accident . The chronic pain
syndrome, the emotional and physical injury she endured resulted in a loss of
earning capacity. Given the plaintiff’s past working history, the absence of any
physical impairment caused by the accident, and her current working ability it
is difficult to quantify the plaintiff’s loss.
[43] The best way to address the likelihood of a probable loss of earning capacity
is to do so through a contingency differential. See: Prinsloo v Road Accident
Fund 2019 JDR 2335 (GP). Applying this approach, it allows for the possibility
of certain forms of loss. This approach is not foreign to a court’s investigation
to determine the amount of damages. See Quantum of Damages, Volume 1,
4th Edition page 8:
‘Allowance for a prospective loss necessarily introduces a s peculative
element into the assessment of damages: while the general rule is that loss
element into the assessment of damages: while the general rule is that loss
must be established on a balance of probabilities, it has been held that justice
may require that a contingency allowance be made for a mere possibility of
certain forms of loss. In this regard the distinction is drawn (in principle, and
not without difficulties) between causation and quantification. ’ See also
Chinappa v Sentrasure 1996 (4c3) QOD86 (c).
[44] In adopting the above approach, I do not accept Martiny’s postula tion of the
plaintiff’s pre- and- post morbid career path. On the contrary, without evidence
of the plaintiff’s current functioning , he was unable to project a future career
path. The objective evidence suggests that the accident did not significantly
impact her career progression.
[45] The plaintiff filed an actuarial report dated 1 July 2023. This report estimated
the plaintiff’s past loss of income at R790 404.00, and future loss of income at
R2 398 437.00, resulting in a total loss of income of R3 188 841.00. The figure
arrived at is based on 5% and 15% contingency deduction s, respectively.
Because of Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996 , the
loss of income was capped at R2 842 152.00. To this I shall apply a
contingency differenti al of 20% because in my view it would be fair to the
plaintiff given her ability not only to cope with her loss but also her ability to
obtain employment in terms of which her salary has increased over the years.
In the circumstances, I find that the plaintiff has proven a loss of R568 430.00.
[46] The plaintiff has proven a past loss of medical expenses totaling R8 761.54 as
supported by vouchers.
[47] I make the following order:
(a) The defendant shall provide to the plaintiff an undertaking in terms of
Section 17 (4)(a) of the Road Accident Fund Act 56 of 1996 for the
payment of the cost of the future accommodation of the plaintiff in a
hospital or nursing home or treatment of or rendering of a service or
supplying goods to her arising from the injuries sustained b y her in the
motor vehicle accident on 29 February 2016, after such costs have
been incurred and upon proof thereof;
(b) The defendant shall pay to the plaintiff an amount of R8 761.54 in
respect of her claim for past hospital and medical expenses;
(c) The defendant shall pay an amount of R568 430.00 for loss of earning
capacity;
(d) The defendant shall pay the plaintiff’s costs of suit, on a party and party
scale, including the fees of counsel on Scale C, and the reasonable
and necessary qualifying expenses of the following expert witnesses:
47.d.1. Dr Carl Liebetrau, orthopaedic surgeon;
47.d.2. Dr Movsowitz and Conway, radiologists;
47.d.3. Ms Chantelle Griesel, occupational therapist;
47.d.4. Ms E Erens, physiotherapist;
47.d.5. Dr Chris George, psychiatrist;
47.d.6. Ms Mia Boon, counselling psychologist;
47.d.7. Mr Lani Martiny, industrial psychologist; and
47.d.8. Ms Michelle Barnard, actuary.
______________________________
S C O’Brien
Acting Judge of the High Court
APPEARANCES:
Plaintiff’s Counsel: Adv P Corbett SC
Plaintiff’s Attorneys: Van Rensburg & Company
Defendant’s Attorneys : Ms C Thomas
The State Attorney