Supreme Court rejects RAF’s bid to reopen widow’s injury settlement

For almost 20 years, Sarah Wilson Lewis has dealt with the emotional and financial fallout from the accident that killed her husband in November 2006. Her path through the legal system has been just as long.

She filed a summons in 2009, and over the years, both she and the Road Accident Fund (RAF) brought in several experts, including psychiatrists, clinical psychologists, and an industrial psychologist, to evaluate the full impact of her loss. These experts eventually produced joint minutes that unanimously stated she had suffered a serious psychiatric injury directly related to the accident.

This expert agreement led the RAF to admit liability in its updated plea in 2022. It accepted full responsibility for her proven or agreed damages and settled parts of the claim, including general damages and medical expenses. For Lewis, this was both a recognition of her suffering and the start of closure.

However, that certainty crumbled when the RAF tried to change its position. After getting a new opinion from an American psychiatrist, one Dr Khan, in late 2022, the RAF sought to amend its plea. It now wanted to deny the psychiatric injury, challenge the connection to the accident, and argue that Lewis still could earn. This new expert opinion sharply contrasted with the earlier agreement among all jointly appointed experts.

The RAF’s attempts to overturn its previous admission led to a series of unsuccessful legal actions. On 18 May 2023, the Western Cape High Court rejected the RAF’s request to amend its plea. On 27 July 2023, the same court denied the appeal. The RAF then took its case to the Supreme Court of Appeal, which, on 18 October 2023, also denied the request under section 17(2)(b) of the Superior Courts Act.

The situation then took an unusual turn. On 4 April 2024, the President of the Supreme Court of Appeal sent the refusal of the appeal back to the court for reconsideration under section 17(2)(f). This set the stage for the RAF reconsideration case, now decided by Acting Judge DV Dlodlo, with Judge XM Petse and BH Mbha concurring.

At the core of the appeal was the link between Lewis’s husband’s death and her psychiatric injury. Four aspects of her claim depended on this connection: past medical expenses, future medical expenses, general damages, and loss of earnings or earning capacity.

The RAF had initially accepted this link. It had also agreed to hire the industrial psychologist, Dr Lourens, whose findings were based on the earlier joint psychiatric assessments. Later, however, the Fund tried to reject these findings even after it had proposed the joint appointment.

The respondent challenged the RAF’s effort to withdraw its admissions, arguing that the Fund had already compromised the issue of causality through the expert agreements reached in pre-trial proceedings. The High Court agreed and denied the amendment.

In dismissing the RAF reconsideration case, the Supreme Court of Appeal strongly criticised the Fund’s actions. Judge Dlodlo stated that the application was marked by unacceptable delays and a lack of a clear explanation. The judgment found that the RAF’s change in position lacked evidence and aimed to undo a binding settlement based on a later opposing opinion.

Judge Dlodlo noted, “At the time of the original admission, there was expert agreement between the psychiatrists and psychologists for both parties, which confirmed the psychiatric injury and its causal link to the accident.” He added, “A compromise is not undone simply because one party later obtains a different opinion.”

The court stressed that section 17(2)(f) is for exceptional cases only. Judge Dlodlo warned that the provision “is not meant to help unhappy litigants by allowing them another chance.”

Finding no exceptional circumstances, the court denied the reconsideration and upheld the settlement as binding. It dismissed the application, ordering the RAF to cover the costs, including those for two lawyers.