- The High Court found the Road Accident Fund (RAF) 100% liable after its defence was struck out for ignoring court orders.
- Acting Judge CB Bhoola confirmed the plaintiff suffered severe orthopaedic injuries resulting in a significant loss of employability.
- The court awarded R1 092 857 for past and future loss of earnings, referring general damages to the HPCSA.
The High Court in Johannesburg has reprimanded the Road Accident Fund (RAF) for its repeated disregard of court rules, holding it fully liable for damages suffered by Lionel Elize Nene following a 2021 vehicle collision.
Acting Judge CB Bhoola struck out the RAF’s defence after it failed to file discovery and attend a pre-trial conference, despite a court order compelling compliance. The matter proceeded to default judgment, with evidence led by affidavit under Rule 38(2).
Nene brought action against the RAF for damages arising from a collision on 11 June 2021 along the N1 Majuba Pass near Volksrust. She was a passenger when a Volkswagen Polo, overtaking unsafely, veered into oncoming traffic and collided with her vehicle. Despite initially disputing both merits and quantum, the RAF failed to participate further in the litigation.
As Judge Bhoola explained, “The defendant failed to comply, and the defence was struck out,” leaving the plaintiff’s version uncontested.
Lasting injuries and economic impact
The court accepted Nene’s unopposed evidence and supporting medico-legal reports, which confirmed a right tibia fracture and left wrist injury. Following closed reduction, immobilisation, and pain management, she continues to experience chronic pain and significant functional limitations.
Judge Bhoola noted that Nene “continues to experience pain, discomfort and physical functional restrictions and limitations,” which have worsened and now affect her ability to stand, walk, sit for extended periods, and perform household tasks. These impairments, the court found, pose “significant obstacles to securing employment in competitive industries.”
Although Nene was unemployed at the time, the court rejected arguments that this diminished her claim. Citing the principle of restitutio in integrum, Judge Bhoola emphasised that damages must restore the injured party, as far as money allows, to the position they would have occupied but for the accident.
Expert evidence from an orthopaedic surgeon, occupational therapist, industrial psychologist, and actuary was admitted unchallenged. While not found permanently unemployable, Nene’s market competitiveness has been materially reduced. She was deemed suitable only for light administrative or clerical work, requiring physical accommodation.
No room for RAF excuses
On liability, Judge Bhoola reiterated that “the slightest degree of negligence suffices under Section 17(1) of the Act.” With the RAF’s defence struck out, Nene, as a passenger, was awarded full merits.
The court applied higher-than-usual contingency deductions to the calculation of lost earnings, reflecting Nene’s employment history and her post-accident vulnerability. However, Judge Bhoola warned that contingencies cannot erode accountability. The judge said quantification must reflect full liability, with deductions only for general and injury-specific risks, not to reduce the RAF’s responsibility.
Ultimately, the court awarded R1 092 857 for past and future loss of earnings. General damages were postponed and referred to the Health Professions Council of South Africa. The RAF was also ordered to provide a statutory undertaking for future medical expenses under Section 17(4) of the Road Accident Fund Act.
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