IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 6678/2023
In the matter between:
NADEEN LILIAN ECHARD PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: MTHIMUNYE, AJ
Date heard: 19 August 2026
Date delivered: 11 September 2026
Summary: Motor vehicle accident - severe injuries sustained -General
damages.
ORDER
In addition to the order dated 20 August 2026 wherein judgment was reserved in respect of
general damages the following order is made:
1. The Defendant is ordered to pay to the plaintiff the sum of R1200 000.00(One million
two hundred thousand rand) in respect of general damages.
2. Should payment as aforesaid not be made within 180 days from the date of this order,
the Defendant shall be liable for payment of interest on the amount calculated at the
prescribed rate per annum from 14 days from the granting of this order, to date of
payment.
3. The issue of cost has already been adjudicated upon in a previous order dated 20
August 2026.
JUDGMENT
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Mthimunye, AJ
Introduction
[1] The merits of this matter have been settled, with the Defendant accepting
100% liability for the Plaintiff's proven and agreeable damages. The loss of
earnings compound component and the Plaintiff’s claim for future medical
expenses have also been settled between the parties. The sole issue remaining
for determination is the quantum of general damages. The Plaintiff seeks an
award of R1200 000.00 in respect of general damages while the Defendant
contends that an award of R800 000.00 would be fair and reasonable.
[2] The claim as per the particulars of claim started with:
Past hospital and relatable medical expenses Direct Claim
Future hospital and medical expenses Undertaking
Past loss of income R244 600.00
Future loss of income R627 600.00
General Damages R1300 00.00
[3] On 20 August 2026, this court ordered, inter alia and accepted as per
agreement between the parties an undertaking in terms of section (17)(4)(a) of
the Road Accident Fund Act 56 of 1996 tendered by the Defendant.
[4] The parties subsequently addressed the court on what they deemed to be
fair and reasonable in respect of the applicable contingencies regarding the
plaintiff's past and future loss of earnings. The parties afterwards indicated that
they were satisfied with the agreed upon contingencies and that they deemed an
amount of R812 306.18 (Eight Hundred and Twelve Thousand Three Hundred
and Six Rands and Eighteen Cents) as fair and reasonable compensation for the
plaintiff’s past and future loss of earnings. Accordingly, after having read the
papers filed on re cord and having heard the arguments by the legal
representatives of both parties, the above-mentioned amount was made an order
of court.
[5] Judgment in respect of General Damages was subsequently reserved. I
now turn to deal with the remaining issue of determining the general damages.
[6] At the commencement of the trial, Plaintiff brought an application as
contemplated in Rule 38(2) of the Uniform Rules of court (“the rules”) seeking
that the evidence of a various medical experts be presented by way of affidavit.
This application was not opposed by the Defendant and consequently granted
by this court. The following experts appointed by the Plaintiff were:
(a) Orthopedic Surgeon, Dr Anton H van der Bout (“Dr van der Bout”), with
medico legal report is dated 20 August 2022 and addendum report dated 7
March 2024
(b) Occupational Therapist, Maretha Labuschagne (“Ms. Labuschagne”) with
medico legal report dated 31 January 2023
(c) Neuropsychologist, Dr Sharon Truter (“Dr Truter”) with medico legal
report dated 10 May 2023
(d) Plastic and reconstructive surgeon, Dr Keith Cronwright, with medico
legal report dated 2 May 2024.
[7] The medico legal report of psychiatrist Dr Tarryn Sutherland (‘Dr
Sutherland”) dated 10 September 2023 was admitted to by the Defendant who
had no objection to this court taking cognizance of it, although it was obtained
at a late stage by the Plaintiff.
Cause of Action
[8] The Plaintiff testified and no experts were called as the defendant
admitted the expert reports to be true and correct at the beginning of the trial. To
summarize the cause of action as pleaded; on 14 August 2021, the Plaintiff was
travelling as a passenger and at or near Spine Road and Merrydale Avenue,
Mitchell’s Plain when the insured driver of vehicle “B’ collided with their
vehicle “A”,
[9] According to the particulars of claim, her injuries include a haematoma of
the face on the right side, a left tib/fib fracture, and emotional shock. Further the
sequelae of her injuries are that she was hospitalized and received medical
treatment. She will have to attend hospital and receive medical treatment in the
future. She suffered past loss of income and will in future suffer loss of income .
She also experienced pain and suffering, shock, discomfort and a loss of
amenities of life and will in future experience pain and suffering, discomfort as
well as loss of amenities of life.
The Applicable Legal Principles
[10] In civil cases, the burden of proof lies with the p arty asserting a claim.
Where an opposing party fails to provide any countervailing evidence to that of
the opposing party, the opposing party’s evidence becomes conclusive . This is
the situation in causa. The Defendant did not lead any rebutting evidence to the
Plaintiff’s expert reports, thus the evidence by the experts is conclusive.
[11] In Coopers (South Africa ) (Pty) Ltd v Deutscher Gesellschaft Fur
Schadlings- bekampfung MBH1 it is stated at para 371 that:
“[A]n expert’ s opinion represents their reasoned conclusion based on certain
facts or data , which are either common cause, or established by their own
evidence or that of some other competent witness. Except possibly where it is
not controverted, an experts’ bald statement of their opinion is not of any real
assistance. Proper evaluation of the opinion can only be undertaken if the
process of reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert”
[12] As foreshadowed above, a court after a proper consideration of the
experts’ opinions, ultimately determines the final decision as to the weight to be
attached to th e expert’s evidence. Furthermore, that t he expert witnesses’
function is merely to assist the court with objective opinions within their area of
expertise.
1 1976 (3) SA 352 (A)
The expert evidence
[13] Dr van der Bout (Orthopedic surgeon) 2reports that the Plaintiff
sustained a he amatoma on the right side of the face. However, the x-rays
showed no fractures. Further that the Plaintiff also sustained a left tib/fib
fracture, which was reduced and put in a plaster of paris (POP) that she was
required to wear for approximately 3 months. This POP was only renewed once.
Further that as a result of this malunion fracture the Plaintiff has been left with a
shortening in tibial length.
[14] He further reports that as a result of the accident , the Plaintiff suffered
from emotional shock and has not received counselling or medication.
Following her discharged from Mitchell's Plain Hospital, she returned multiple
times for follow -up examinations. The Plaintiff was thereafter referred to
Groote Schuur Hospital as a result of the malunion of the left leg. On 18
February 2022the doctors at Groote Schuur elected not to do an osteotomy of
the mal-united tibia but instead d ecided the Plaintiff should receive additional
physiotherapy along with pain medication.
[15] On 22 August 2022 , during consultation, the Plaintiff reported the
following complaints ; that she suffers from occasional headaches with
dizziness, insomnia, and experiences flashbacks and nightmares. That she
experiences anxiety when in traffic as she fears another accident will happen.
He also reported that during his examination of the Plaintiff he found that she
walked with 1 crutch, with an antalgic and short -legged gait. He opined that the
left leg is clearly shorter than the right leg and that the Plaintiff experiences
axial pain in the fracture area. In addition, the left knee of the Plaintiff’s has
2 Court bundle p. 19-42
more fluid than usual and on touching a crepitation of the patella -femoral joint
could be felt . He concludes t hat according to the patella -femoral test the
plaintiff tested positive for damage of the joint.
[16] Dr van de n Bout further reported that after assessing the x-rays by Dr
Morton and Partners and the accompanying report by Dr EJ Previous, he found
that the Plaintiff’s left lower leg showed a mal-united mid to distal fracture of
the tibia with varus angulation. Thus, he recommended that the Plaintiff receive
operative osteotomy to the left tibia with internal fixation and an arthroscopy
with debridement of the left knee. He opined that the Plaintiff would always
have a painful and weaker left lower leg as a result of the accident which has
changed her life considerably to the extent that it makes her an unequal
competitor in the open labor market.
Dr Van den Bout’s Addendum Report
[17] In his addendum report dated 7 March 2024, he confirms that the Plaintiff
eventually underwent an osteotomy procedure on 14 November 2022 at Groote
Schuur Hospital where an intra medullary locking nail fixation of the left tibia
was performed. Despite Plaintiff being admitted for 3 days after the operation
and complaining about her left knee, no operation was performed on the left
knee.3
[18] He further lists the Plaintiff’s complaints at the time of drafting the report
which include discomfort and painful conditions in her leg during cold weather.
In addition, she suffered pain during prolonged periods of walking and standing
on her legs , when carrying heavy objects . She also limps during excessive
physical activity. The Plaintiff also endures discomfort when mobilizing after
3 Court bundle p 117-133
prolonged sitting and lying necessitating the use of painkillers. She is unable to
squat or kneel as she did prior to the accident and has to climb stairs gradually,
leading with her right leg. This results in her ankle becoming swollen at times.
It is lamentable that the Plaintiff had to endure discomfort and a deprivation of
comforts for 7 years while awaiting her left leg surgery.
[19] The evidence of Ms. Labuschagne, an Occupational Therapist, as
detailed in her report is of significance and corroborated by both the Plaintiff
during viva voce evidence in her trial and Dr Van den Bout. She used to play
netball and was involved in netball coaching , however, the Plaintiff is no longer
able to partake in these everyday activities due to the injuries she sustained in
the accident. She confirms that the Plaintiff has limited walking ability and may
rely on a sympathetic employer to provide her with necessary accommodation.
[20] Dr Sharon Truter (Neuropsychologist) reported that in her evaluation
of the Plaintiff’s mood affect, she observed that the Plaintiff exhibited signs of
mood and depression. Although the Plaintiff was pessimistic of the future . The
Plaintiff had a high score on negative impression which indicates that she
attempted to portray herself in a negative manner. Her DEP (depression) scale
strongly indicated a diagnosis of a major depressive episode and indicated
feelings of hopelessness, discouragement and uselessness. The Plaintiff’s profile
on the PAI (“Personal Activity Intelligence”) and clinical presentation suggests
that the Plaintiff is suffering from a depressive episode with suicidal ideation
and obsessive disordered thoughts related to the physical difficulties of her
injuries and the trauma of the accident.
[21] Dr Truter further indicates that the traumatic nature of the accident, the
long, painful orthopedic difficulties suffered by the plaintiff and the changes in
her lifestyle a s well as her sense of self , due to the injuries sustained , all
contribute to her current emotional state and are casually related to her current
depressive episode s. She recommends that the Plaintiff be assessed b y a
Psychiatrist for treatment of her depression. 4
[22] Dr Cronwright, a Plastic and Reconstructive Surgeon , observes that
the Plaintiff exhibits multiple areas of hyperpigmented (darker tone) scarring
resulting from the presumed insertion of IMN (“Intramedullary Nailing ”) and
associated injuries sustained. These are visible when wearing shorts and dresses.
Further th e right thigh was enlarged, which she opines is in all probabilit y
secondary to a post - traumatic lipoma (resolved heamatoma). This will be
conspicuous and attract negative attention when the Plaintiff is wearing tight
fitting pants or dresses.
The evidence of the plaintiff
[23] The Plaintiff was a competent, reliable and satisfactory witness. She
extensively referred to the aforementioned medico legal reports. In summary
she testified that in respect of the heamatoma to her face, remained visible 2 to 3
months following the accident and caused her much embarrassment. She also
experienced headaches for which she prescribed analgesics. She confirmed the
nature and scope of the treatment she received for the left tibia/fibula fracture,
which included reduction and fitting of a Plaster of Paris cast, which she wore
for approximately 3 months. That even after the POP was renewed, she still
suffered with a mal union fracture and shortened tibia.
[24] She testified that she eventually had surgical intervention, performed at
Groote Schuur Hospital on 14th November 2022. This resulted in her being able
to ambulate with the use of crutches. She however w as unable to walk long
distances or move around in a mall without the use of a wheelchair . Further that
4 Court bundle; page 55-65
her leg remained painful every day, especially with prolonged standing and
walking. This pain being exacerbated by weather change s. Further due to her
left leg being weak she is unable to run and struggles to climb stairs. She is also
unable to a mbulate outside of her home without the support of one of her
crutches.
[25] She testified that sometimes she feels depressed and cries as she no
longer has personal contact and interactions she cr aves from colleagues and
patients as she is no longer employed. She used to love these interactions before
the accident.
[26] She further corroborated the evidence of Dr Cronwright that she has
multiple areas of hyperpigmented scarring secondary to inspection of IMN and
the injury sustained. These will be visible when wearing short s and skirts. 5 She
testified that it is embarrassing to her and as a result she no longer wants to wear
shorts. She confirms th e presence of an enlarged right thigh in comparison to
the left, that it is visible when she wears a tight-fitting jeans and dresses, and
described this hematoma as being painful . She further testified that the pain in
her left knee is a physical hindrance, as it makes sounds, swells, locks and give
way when she walks.
Discussion
[27] General damages represent a category of damages awarded by a court to
compensate for non -patrimonial and non-financial loss suffered because of a
wrongful act. The court is tasked with exercising its discretion, guided by
awards made in comparable precedents. In considering previous awards, the
court must also have regard to inflation and the cost of living. In addition, the
5 Court bundle, p111 3.4
court has to consider the submissions made by the parties and precedents
provided by them as well as the evidence of the witnesses before court in order
to come to a just and reasonable award.
[28] Upon reviewing the evidence in its totality, inasfar as general damages in
this matter is concerned, it is clear that the Plaintiff suffered se rious painful
injuries, resulting in protracted treatment and ongoing discomfort. This
discomfort accompanied by pain persists to this day. The Plaintiff has
experienced significant deprivation of life’s conveniences as she is unable to
participate in netball and is excluded from returning to her previous
employment as she can no longer stand for long periods of time, kneel or walk
distances. This not only renders her unable to earn an income but also has the
psychological consequences in that she no longer has personal contact and
interactions she craves from colleagues and patients, something she loved. This
clearly indicates that she is suffering emotionally and psychologically as she
will never be able to be placed in the position, she was before the accident.
Although she had pre -existing psychological issues, according to Dr Truter she
has made good recovery from, and it was only recently exacerbated by the
accident. Dr Truter further recommended that the Plaintiff be assessed by a
Psychiatrist for treatment of her depression.
[29] The Plaintiff further has lifelong scarring on her left leg and thigh
resulting in feeling embarrassed and uncomfortable when wearing dresses or
shorts. It is clear that this physical scarring of her body as well as the
enlargement to her hip affects her ability to enjoy her everyday activities,
hobbies and normal pleasures of living. These scars are permanent and clearly
disrupting the Plaintiff’s social and physical routine.
Conclusion
[30] I have reviewed and considered the number of comparable cases provided
by counsel and find that no two cases are the same. Each case has to assessed on
its own facts , injuries sustained and the sequalae or anticipated impact of the
Plaintiff’s future. Having evaluated the conspectus of evidence in this matter, I
am of the firm opinion that the amount of R1200 000.00 (One Million Two
Hundred Thousand Rands) represents a fair , just and equitable award in
compensation for the injuries sustained by the plaintiff.
Costs
[31] The issue of cost s has already been adjudicated upon in a previous order
dated 20 August 2026.
Order
[32] In the result I make the following order:
In addition to the order dated 20 August 2026 wherein judgment was reserved in
respect of general damages the following order is made:
1. The Defendant is ordered to pay to the plaintiff the sum of R1200
000.00(One Million Two Hundred Thousand Rands) in respect of general
damages.
2. Should payment as aforesaid not be made within 180 days from the date
of this order, the Defendant shall be liable for payment of interest on the
amount calculated at the prescribed rate per annum from 14 days from the
date of the granting of this order, to date of payment.
3. The issue of cost has already been adjudicated upon in a previous order
dated 20 August 2026.
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S MTHIMUNYE
Acting Judge of the High Court
Representatives
Counsel for Plaintiff: Adv Christo Bischoff (christo@law01.co.za)
Attorneys for Plaintiff: Kruger & Co Attorneys ( nicola@krugercolaw.co.za)
Attorney for Defendant: State Attorney, Mr Flip Goosen (flipg2@raf.co.za)
Claims Handler: Mandisa Nkabinde (mandisan1@raf.co.za)