Amoré van der Merwe v Road Accident Fund

The appellant, Ms Amoré van der Merwe, was injured on 27 October 2012 as a 19‑year‑old passenger in a bakkie that capsized near Modimolle, rolled over her and caused severe orthopaedic injuries, including a fractured femur, hip dislocation, pelvic fractures, soft tissue injuries and lumbar spine injury. She later underwent a total hip replacement. She sued the Road Accident Fund (RAF) for damages. Liability on the merits was conceded by the RAF, and general damages of R800 000 and a statutory undertaking under s 17(4)(a) of the RAF Act were agreed. The only issue left for trial was loss of earnings and earning capacity. After the plaintiff led unchallenged evidence from herself and expert witnesses, the RAF raised for the first time in closing argument that a later fall down stairs in 2015 constituted a novus actus interveniens breaking causation. The trial court accepted this argument and granted absolution from the instance. The full court dismissed an appeal. The plaintiff appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The orders of the full court and trial court were set aside. The RAF was declared liable for 100% of the plaintiff’s agreed or proven damages, ordered to furnish a s 17(4)(a) undertaking, and ordered to pay R800 000 in general damages and costs. The quantification of loss of earnings was remitted to the trial court for determination. The application to adduce further evidence on appeal was dismissed with costs.

The judgment reaffirms that novus actus interveniens is a matter of causation that must be properly pleaded and proved, and cannot be raised for the first time in closing argument. It underscores the impermissibility of trial by ambush, clarifies the effect of a concession of liability on causation, and provides authoritative guidance on foreseeability in assessing intervening events in RAF and delictual claims.